1. The chief point in this Civil Revision Petition is whether the Lower Court had jurisdiction to try the suit as a Small Cause suit. The suit was by the plaintiff to recover damages for use and occupation of his land from the defendant. Defendant's son was let into occupation of the land as plaintiff's tenant for five years, under Ex. A. After expiry of Ex. A he continued a tenant holding over. He died and his mother, the defendant, continued to cultivate without any notice to quit or protest from the plaintiff for six faslis. Plaintiff sues for damages for such use and occupation for three faslis, the rest of the claim being time-barred.
2. The plaint is clearly on the footing that the claim is for such damages and not for rent on the footing of the kabuliat, Ex. A. Defendant argued that this is a suit which is prohibited by Article 31 of the second schedule of the Provincial Small Cause Courts Act from being tried by a Small Cause Court. Plaintiff urges that this objection was not taken before the District Munsif. It is certainly taken in the defendant's written statement, and as the District Munsif has not put down in his judgment the points for determination, we are unable to conclude that the point was abandoned by the defendant.
3. This is not a suit in which the defendant came into possession by permission of the plaintiff or admits the plaintiff's title or is estopped from denying the plaintiff's title. The legal representative of a tenant holding over is a mere trespasser. [See Vadapalli Narasimham v. Dronamraju Seetharamamurthy (1907) 18 MLJ 26]. And in her written statement the defendant definitely challenges the plaintiff's title and sets up title in herself. There is, therefore, no contractual relationship between the plaintiff and the defendant on the footing on which the suit is based, and the question of title cannot be avoided. Plaintiff has first of all to establish that he is the lawful owner of the land before he can sue for damages for use and occupation. It is true that the defendant pleads in the alternative payment of maktha cist to the plaintiff yearly but it is not the plaintiff's case that there was any kabuliat between himself and defendant on which such maktha became payable. Hence this is not a case similar to those in Vira Pillai v. Rangaswaml Pillai ILR (1898) M 149 and Subba Rao v. Sitaramayya (1900) 11 MLJ 26 in which the defendant had, in the first instance, entered on the land with the permission of the plaintiff or the plaintiff's predecessors-in-title and therefore the question of title was not in issue.
4. The present case, therefore, is one in which the defendant has received mesne profits under a claim of title and one who claims to be the rightful owner in seeking to recover the same-after having an account taken of the mesne profits. This appears to us to be a case covered by the Full Bench decision in Savarimuthu v. Aithurusu Rowther : (1901)11MLJ428 and not cognizable by the Court of Small Causes. The Lower Court, therefore, had no jurisdiction to try the case.
5. It is urged by the plaintiff that this is not a case in which we should interfere in revision because the defendant has not been prejudiced. To this we cannot agree. The Lower Court has ignored the issue of title and we cannot find that it was abandoned by the defendant. Plaintiff is not absolved from the duty of proving his title and defendant is prejudiced by the Court having so absolved him. We must therefore interfere and set aside the Lower Court's decree and remand the case for disposal on the Original Side of the Court Costs up to date will abide the result.