1. The only question which arises for decision in this civil revision petition is whether the suit is excepted from the cognizance of the Small Cause Courts because the claim falls under Article 35(ii), Schedule II of the Act which runs as follows:
A suit for compensation for an act which is, or, save for the provisions of Chapter IV of the Indian Penal Code, would be, an offence punishable under Chapter XVII of the said Code.
The suit was for the recovery of a sum of Rs. 65 being the value of tamarind belonging to the plaintiff alleged to have been taken away by the defendants on 1st March, 1945. The learned District Munsiff of Turiyur held that the suit did not fall within the scope of this Article and decreed the suit finding on the merits in favour of the plaintiff. The defendants are the petitioners in this Court.
2. Though a number of decisions were cited before me by both the learned advocates for the petitioners and respondents, in every decision the learned Judges make it clear that whether a suit does or does not fall within the Articles is prima facie a matter to be decided upon the language of the plaint. See the decisions in Sakhya v. Sadashiv A.I.R. 1930 Bom. 361, Bhan Dat v. Moti Lal : AIR1932All472 and Deoki Rai v. Harakh Narain Lal I.L.R. (1926) All. 85. I have been taken through the plaint and on a fair and ordinary consideration of the plaint it appears to me that the present suit does not fall within that Article. I cannot say that on a fair reading of the plaint it discloses the commission of criminal offence by the defendants. The material paragraph is the fourth in which it is alleged that on 1st March, 1945, the plaintiff gathered the tamarind from certain trees and tried to collect the same, but the defendants joined together and unlawfully took away the tamarind thus causing loss to the plaintiff. The learned advocate for the petitioners wants me to hold on this language that the plaintiff alleges the commission of theft by the defendants, as if the plaintiff had said that the defendants with the dishonest intention of causing unlawful gain to themselves and less to the plaintiff took away the tamarind. On the other hand, what I find in the plaint is that the defendants took away the tamarind and thus caused loss to the plaintiff. The language in some of the cases cited on behalf of the petitioners, is not identical with the language used in the plaint in this case. I agree with the learned District Munsiff that the case does not fall within Article 35(ii) of Schedule II of the Provincial Small Cause Courts Act.
3. It was also contended by the petitioners' Counsel that the suit relates to a right to immoveable property because while the plaintiff alleges that the trees belong to certain temples, the defendants claim that they are situated on their own land. He, however, conceded that when trees were cut they became moveable property and a suit in respect of such trees when cut would be cognizable by a Court of Small Causes. I do not find any distinction on principle between trees which have been cut and produce which has been gathered from the tree. After the tamarind has been brought down from the tree, as alleged by the plaintiff, it is certainly moveable property. The fact that incidentally the question of title to immoveable property may have to be gone into does not take away the jurisdiction of the Small Cause Court. I do not agree with the contention of the petitioners.
4. In the result, the Civil Revision Petition is dismissed with costs.