1. A preliminary objection is taken that no second appeal lies as the case is of a small cause nature.
2. Though the case was tried on the regular side, as it involved a question of title, it is not the less a suit of small cause nature. See Muthukaruppan v. Sellan 15 M.k 98.
3. An objection striking at the root of the jurisdiction of the lower Courts has, however, been taken by the appellants' Pleader. He argues that the suit should have been filed in a Revenue Court to obtain damages under Section 213 of the Madras Estates Land Act, This section provides for suits being filed for damages before the Collector by persons deeming themselves aggrieved by proceedings taken under colour of this Act or by neglect or breach of any of its provisions.
4. This. is not a case of anything being dones under the colour of the Madras Estates Land Act, nor do I consider that any provision of the Act can be considered to have been broken by the cutting of trees, when Section 12 merely recognises the right of occupancy ryots to enjoy the trees upon their holding and does not prescribe any procedure or penalty for preserving such right from infringement.
5. The second appeal is dismissed with costs.
6. The civil revision petition fails for the same reason and is dismissed.
7. In this second appeal a preliminary objection is taken that no second appeal lies under Section 102 of the Code of Civil Procedure, as the suit is of a small cause nature and below Rs. 500 in value. Plaintiffs sued for damages of Rs. 100 as the value of trees wrongfully cut and carried away by defendants from his land, of which lie alleged he was the owner. Defendants contested his title. The plaint, which was originally filed in the Small Cause Court, was thereupon returned under Section 23 of the Provincial Small Cause Courts Act to be re-presented to a Court competent to try and finally determine the issue as to title. The plaint was re-presented to the District Munsif's Court on its regular side and that Court decreed in plaintiffs' favour for Rs. 20 and annas 8 as damages. In appeal the Appellate Court modified the decree and this second appeal is against the Appellate Court's decree.
8. The suit is clearly of a small cause nature, as it is not excluded from the cognisance of the Small Cause Court by any of the exceptions to the Second Schedule of the Provincial Small Cause Courts Act. A suit by the landlord against the tenant for the value of trees improperly cut and removed by him was held to be a small cause suit in Ramasamy Chettiar v. R.G. Orr 26 M.k 176 : 12 M.L.J. 264. The fact that the plaint was returned under Section 23 can make no difference to the nature of the suit. This has been already ruled in the case of Muthukaruppan v. Sellan 15 M.k 98. This ruling was followed in Narayan v. Balaji 21 B.k 248 and Kali Krishna Tagore v. Izzaiannissa Khatun 24 C.k 557.
9. It is, however, argued that since the passing of the Estates Land Act a suit like the present is made exclusively cognizable by the Revenue Court and the jurisdiction of the Civil Court is altogether taken away. The appellants' Vakil relies on Section 213 of the Act read with Section 189. He contends that this is really a suit for damages for breach of one of the provisions of the Act, viz., Section 12, and that though Section 213 does not itself take away the jurisdiction of the Civil Court, Section 189 has that effect, as this suit is one falling in No. 21, Part A, of the Schedule; and the Full Bench decision in Narayanaswamy Aiyar v. D. Venkaiaramana Aiyar 31 Ind. Cas. 326 : 39 M.L.J. 607 : (1915) M.W.N. 921 is relied on.
10. Section 12 provides that every occupancy ryot has a right to use and enjoy and cut down trees on the land subject to any rights of the landlord by custom or contract existing before the passing of the Act. It is true that the lower Courts have found that plaintiffs' title to the trees in question is under this section. But to bring the suit within the scope of Section 213, it must, be shown that it is for damages for a breach of Section 12. That section confers on the tenant a title to the trees. It is not possible to understand how a title given by Statute can be broken. The words 'breach of any of its provisions' show that the provision referred to must be one that can be broken; Section 12 is clearly not one that comes within that description. Suits for damages for breach of covenant for title are well known when title is attempted to be transferred by act of parties. But by no stretch of language can a suit for damages for cutting trees be described as a suit for breach of title to the trees.
11. If there was a section directly prohibiting the landlord from cutting the trees on the land, it may be argued that such a cutting will be a breach of that provision; but there is no such section.
12. I am, therefore, of opinion that the present suit is not one chat can be brought within the scope of Section 243. The appellants' argument that the suit is one cognizable by the Revenue Court, therefore, fails and it is not necessary to examine the other parts of the argument. The suit is one of a nature cognisable by the Small Cause Court and the second appeal, therefore, fails. The revision petition under Section 115 of Act V of 190 also fails, as the lower Courts had full jurisdiction in the matter, the Small Cause Court having acted under Section 23 of the Provincial Small Cause Courts Act.
13. I agree that the second appeal and the civil revision petition should both be dismissed as proposed.