Norris and Beverley, JJ.
1. In second appeal the only point urged is that the Judge was wrong in holding that a certain petition, upon which the Munsif had relied, was inadmissible in evidence by reason of its not having been formally proved.
2. The learned pleader for the respondents raised a preliminary objection that as the suit was of the nature cognizable by a Court of Small Causes, and the subject-matter did not exceed Rs. 500, no second appeal lay.
3. For the appellant it was contended that the suit was one 'for the profits of immoveable property belonging to the plaintiff which had been wrongfully received by the defendants,' which by virtue of Article 31 of schedule II of Act IX of 1887 is exempted from the cognizance of a Court of Small Causes.
4. The learned pleader for the respondents relied upon the following cases viz. Ram Peari Debia v. Dinonath Mookerjee 10 W.R. 375 Bheenuck Lall Mahton v. Rung Lall Mahton 11 W.R. 369 and Makhan Lall Datta v. Goribullah Sardar I.L.R. 17 Cal. 541. For the respondents the case of Krishna Prosad Nag v. Maizuddin Biswas I.L.R. 17 Cal. 707 was relied on.
5. The cases in the Weekly Reporter were cases under the repealed Act of 1865, Section 6 of which enacted that the following suits should be cognizable by Courts of Small Causes, viz., 'claims for money due on bond or other contract, or for rents, or for personal property or for the value of such property, or for damages when the debt, damage or demand does not exceed in amount or value the sum of five hundred rupees, whether on balance of account or otherwise'. In Ram Peari Debia v. Dinonath Mookerjee 10 W.R. 375 MACPHERSON and BAYLEY, JJ. held that a suit for mesne profits only, no question of title or right arising in it, was within the meaning of this section, and that if the amount claimed did not exceed Rs. 500, by virtue of Section 27 of Act XXIII of 1861, no special appeal lay. The facts of the case are not given. In Sungram Singh v. Juggun Singh 2 N.W.P. 18 it was held that a suit for assessed mesne profits, within the pecuniary limits of Section 6 of the repealed Act, was a suit for damages and therefore cognizable by a Court of Small Causes.
6. In Krishna Prosad Nag v. Maizuddin Biswas I.L.R. 17 Cal. 707 the learned Judges say that the case of Sungram Singh v. Juggun Singh 2 N.W.P. 18 'has never been followed'. In one sense this is no doubt correct, for it was decided after the case of Ram Peari Debia v. Dinonath Mookerjee 10 W.R. 375; but with all due respect, the dictum is somewhat misleading, for the case of Ram Peari Debia v. Dinonath Mookerjee distinctly decided that a suit for mesne profits within the pecuniary limits of Section 6 of the repealed Act was a suit for damages, and therefore cognizable by a Court of Small Causes. The case of Bheenuck Lall Mahton v. Rung Lall Mahton 11 W.R. 369 is not in point. That was a suit for damages for carrying away standing crops. It was contended that Section 6 of the repealed Act was limited to damages in respect of moveable property alone, and that standing crops were immoveable property. The Court held that the section made no distinction between suits for damages to moveable property and suits for damages to immoveable property.
7. The case of Makhan Lall Datta v. Goribullah Sardar I.L.R. 17 Cal. 541 came before this Court upon a reference from the Judge of the Small Cause Court of Sealdah, and no one appeared on the reference. In that case the plaintiff sued for Rs. 20 as damages for use and occupation of his land by the defendant for three months, alleging that the defendant had occupied the land for that period without his consent, and had used some of the earth for making wall sidings. The learned Judges (Tottenham and Ameer Ali, JJ.) held that the suit was cognizable by a Court of Small Causes.
8. The case of Krishna Prosad Nag v. Maizuddin Biswas I.L.R. 17 Cal. 707 came before the same learned Judges. It was a suit for damages for cutting and carrying away grass growing on plaintiff's land. The defendant contended that such a suit was one 'for the profits of immoveable property...wrongly received by the defendant'. This contention was overruled. It was held that 'article 31, schedule II of Act IX of 1887 does not except from the jurisdiction of a Court of Small Causes suits for damages for trespass and for the forcible appropriation of crops or the produce of land'. This was sufficient for decision of the case; but the learned Judges go on to discuss the question whether a suit for mesne profits is now, whatever may have been the case under the Act of 1865, cognizable by a Small Cause Court, and they express a strong opinion that it is not so cognizable.
9. From that opinion, as at present advised, we are not prepared to differ, and we must therefore hold that the preliminary objection fails. As intimated in the course of the argument, we think that, having regard to the circumstances under which it was filed and used in the first Court, the plaintiff should have an opportunity of proving the petition relied on. We therefore direct the District Judge to take such evidence as the plaintiff may produce to prove the petition, and to return his finding upon such evidence to this Court at his earliest convenience.
10. The appellant must pay the costs of this appeal.
11. The costs of the suit in the lower Courts and of the taking of the further evidence will be dealt with after the Judge's finding has been returned to this Court.