1. This is an appeal from the decree of the Subordinate Judge of Rajahmundry and a preliminary point is taken by the learned advocate for the respondent that no second appeal lies. The suit is brought by a zamindar against the inamdar for damages for use and occupation by the defendants for faslis 1328 to 1330 assessed at Rs. 37-9-0. Plaintiff alleges that the defendants who were his tenants were liable to pay a sum of Rs. 11-4-6 per year as kist including local and railway cesses and the question is whether the suit is of a small cause nature. It was originally instituted as such, but was then presented to the original side of the Munsif's Court in order to decide a question of title which had been raised by the written statement, under Section 23, Provincial Small Cause Courts Act. Mr. K. Kameswara Rao, the learned advocate for the respondent has cited a series of cases which seem to me under the circumstances of this case to cover all the points. For instance if this sum of Rs. 37-9-0 is to be treated as rent the decision in Soundaram Ayyar v. Sennia Naicken  23 Mad. 547, covers it. If it is recovery of cess, Sri Maharajah of Vijianagaram v. Veeramma  36 Mad. 18 covers it. If it is to be treated as kattubadi then Mallapudi Balakrishnayya v. Venkatanarsimha Appa Rao  19 Mad. 329 and Subbayya v. Rajah of Venkatagiri A.I.R. 1922 Mad 352, covers it. The suit is specifically laid for damages and that claim is covered by the authority of Makham Lall Datta v. Goribulla Sardar  17 Cal. 541 and Vira Pillai v. Rangaswami Pillai  22 Mad. 149. The latter was a case of damages for use and occupation of land and it is perhaps important in view of what I am going to say that it was the plaintiff's case alone that was set out in the case and referred for the opinion of the High Court under Section 646 (b), of the then Civil P.C. Makham Lall Datta v. Goribala Saradar  17 Cal. 541 is to the same effect. There the defendants contested the plaintiff's title to the land as he did here. The fact that the plaint was returned under Section 23, Provincial Small Cause Courts Act makes no difference. C.F. Muthukaruppan v. Sellan  15 Mad. 98, where the learned Judges say that the suit does not cease to be of a. small cause nature by reason of the Court having exercised its discretion under Section 23, Provincial Small Cause-Courts Act. See also the Full Bench in Manappa Mudali v. S.I. Mc. Carthy  3 Mad. 192 where Innes, J. pointed out that it was' difficult to understand how a suit, the claim in which is cognizable by a Court: of Small Causes can cease to be within the jurisdiction of the Court by reason, merely of the issues raised by the defence. It is contended by the learned advocate for the appellant that as the defence raised a question of title it must be taken that the suit was one on title and is, therefore, outside the cognizance of the Small Cause Court and he relies on a decision in Prayag Doss Jee Varu v. Doraiswami Iyengar : AIR1926Mad656 by Devadoss and Waller to the effect that though a Small Cause Court is entitled to decide a question of title if it arises incidentally, yet there the plaint and the written statement show that the issue to be fought and decided is one of title the suit cannot be considered to be one of a Small Cause nature.
2. Here the question of title was entirely incidental and it is impossible to say what question was raised or how it was raised in the case before the learned Judges in 23 L. W., because we have not got the plaint and the written statement set out in the report. With' respect it seems to me that the nature of a suit is to be decided on the plaint as, pointed by Innes, J., in the Full Bench decision and I think in other decisions of this Court. It seems to me quite clear that this is a Small Cause Court Suit and, therefore, no second appeal lies, and it is accordingly dismissed with costs.