Madhava Nair, J.
1. Plaintiff is the appellant. Plaintiff's suit was for the enforcement of an agreement to sail and in consequence for the establishment of his right to four-ninths share in the Zamin described in the Schedule or in the alternative for damages. The learned District Munaif gave him a decree for damages, but on appeal that has been set aside by the learned Subordinate Judge. This second appeal is against the decree dismissing the plaintiff's suit and is valued at Rs. 160, the damages disallowed by the lower appellate Court.
2. Mr. Sesbaohariar, the respondents' vakil, raised a preliminary objection that there is no second appeal in this case as the suit is one of a Small Cause nature for a sum below Rs. 500 In deciding the question whether a suit is of a Small Clause nature or not, attention has to be paid to the nature of the suit, as it was presented in the first Court and not to the subsequent shape that it may have taken as a result of the findings of the lower Courts. The suit in this case was clearly for the specific performance of a contract or in the alternative for damages. Such a suit is not a suit of a Small Cause nature. See Lakshmandas v. Anna (1908) 32 Bom. 356, Rustomji Ardeshir Irani v. Vinayak Gangadhar Bhat (1911) 35 Bom. 29. I overrule the preliminary objection. Going to the merits the first question for consideration is whether the agreement of November, 1915 has been proved by the plaintiff. The facts relevant for the decision of that question may be thus shortly stated. The deceased brother of the 1st defendant, Thimmayya by name, agreed to convey the property to the plaintiff and the plaintiff is alleged to have given him the consideration for, the transaction. The 1st defendant afterwards executed the agreement Exhibit B. He died in the course of the suit and after his death the other defendants 2 to 4, his children, have been brought on record as his legal representatives. Evidence has been given by the plaintiff as P.W. 1 in support of the facts of his case, and P.W. 2 proves Exhibit B. These witnesses have not been cross; examined by the defendants. All the same the learned Judge came to the conclusion that the contract has not been proved by the plaintiff. The fact that the witnesses have not been cross-examined by the defendants cannot in any way affect the truth of the plaintiff's case. The question is whether from the plaintiff's evidence it becomes clear that there was an agreement as alleged by him in his plaint. The learned Judge says:
I cannot uphold the arguments of respondents' vakil to the contrary as there is an utter absence of proved cogent circumstances upon which the question of lat defendant having been a party to Ex. B in a representative capacity cannot be decided,3. I believe what he means to say in this sentence is that there may be evidence given by the plaintiff's witnesses in support of his case but he is not prepared to act upon that evidence. The plaintiff' is an interested witness speaking about facts, which are in his favour and the Subordinate Judge has elected not to believe him, though he has not specifically stated so in his judgment. In bearing a second appeal I am precluded from weighing the evidence which has not been believed by the lower appellate Court I have therefore to dismiss the second appeal with costs.