1. This is a suit to recover Rs. 378-7-7, being the value of certain logs of timber or the logs themselves. The plaintiffs' suit was dismissed by the learned District Munsif, but on appeal, the learned Subordinate Judge has given a decree in his favour for Rs. 174. Against this decree, the second appeal has been filed. A preliminary objection has been raised that the value of the suit being below Rs. 500 no second appeal lies under Section 102, Civil P.C. It is contended for the appellants that the suit is one falling under Section 35(h)(ii), Sch. 2, Provincial Small Cause Courts Act, and is therefore not triable by a Small Cause Court. Section 35(h)(ii) runs as follows
for an act which is, or, save for the provisions of Ch. 4, I P.C., would be an offence punishable under Ch. 17 of the said Code.
2. To see whether this clause applies, we must take the plaint, a summary of which is extracted in the judgment of the trial Court. To put it briefly, the plaintiff alleged that he took a certain land on lease to fell timber under a registered karar from K.M. Narayanan Nambudripad, that he cut some of the logs of timber in the plaint schedule which did not contain the property marks of V. Rajagopalachari, that the other logs were cut by the prior lessee V. Rajagopalachari, that he purchased the logs from him, that he had dragged this timber and stacked it in karimbuparamba in which he had acquired a right from Govindan Nair and another under a certain letter on 14th August 1918, that on 18th July 1920 the defendants came with a number of men to forcibly remove it, that the plaintiff complained to the Sub-divisional Magistrate of Malapuram on 20th July 1920, that in pursuance of his complaint the Pandikad police came and found that a melchappa had been affixed on the logs, that seeing that there would be a breach of the peace, the police took them from the plaintiff's custody and entrusted them to V. Kunhavara on kaichit, that while the matter was pending before the Sub-divisional Magistrate the defendants took away some logs of timber from Kunhavara, that plaintiff complained to the Subdivisional Magistrate and to the police, that the police took them into custody again and entrusted them to the same Kunhavara, that the criminal case was heard by the Stationary Sub-Magistrate, C.C. No. 435 of 1920, that the defendants were convicted, that on appeal the conviction was set aside, that the Stationary Sub-Magistrate ordered that the logs of timber should be released to the defendants, that on 17th April 1921 he petitioned to the Subdivisional Magistrate that the logs of timber should not be released to the defendants, that the Subdivisional Magistrate dismissed his petition saying that the matter should be settled by a civil suit, that the defendants have no right to or the possession of logs of timber, that the logs belong to him, that they may be attached and sold and that he should be given a decree for the amount.
3. The question, whether the cutting of trees under a mistake of fact does or does not fall under Section 35(h)(ii), Provincial Small Cause Courts Act, appears to be a disputed one, and the decisions are conflicting on this point. The earliest case quoted is Dilbahar Hossain v. Sadaruddin Choudhuri AIR 1923 Cal 568, where it was held that a suit to recover the value of trees cut down by the defendant under a bona fide claim of right does not fall under Article 35(ii), Sch. 2, Provincial Small Cause Courts Act. The next case is Kunwarpal v. Madan Mohan AIR 1923 All 428, which took the same view. The next case is Ganesh Das v. Suraj Pal Singh AIR 1924 All 537, where it was held that a suit for damages arising out of unlawful attachment and sale in execution of a decree against a third party of trees belonging to the plaintiff is not a suit within the cognizance of a Court of Small Causes. The last case is Raghubar Dayal v. Mulwa : AIR1927All288 , where it was held that the cutting of trees under a bona fide claim of right, or as a result of the dispute, is not necessarily a criminal offence and will not bring the case under Article 35(ii), Sch. 2, Small Cause Courts Act. Consequently three cases of Allahabad High Court are in favour of the respondent's contention, while one is against it. However, fortunately in this case it is not necessary to go into that matter at all.
4. The cause of action is based by the plaintiff not upon the defendants having forcibly taken away the logs of timber from his possession, but upon the defendants having wrongfully taken them away from the Court as ordered by Court and there is no question that this is not an offence under any circumstances. In a much weaker case reported in Shiam Sunder Ram v. Ram Hat : AIR1925All130 it was held that even taking the disputed properties away by one of the parties from the mediator while the matter was pending decision as to ownership, would not amount to an offence and so would not fall under Article 35(h)(ii). There can be no question in this case that to take property away from Court in accordance with the Court's order is not an offence apart from any exceptions created by Ch. 4, I.P.C. Therefore the suit was triable as a Small Cause suit being under the value of Rs. 500. No second appeal lies. The preliminary objection prevails and this second appeal is dismissed with costs. The Memorandum of Objections is not pressed and is dismissed with costs.