1. The petitioner before us brought a suit for damages against the defendant for wrongfully catching and taking away fish from a tank in which the plaintiff said he had 8-annas share of which he was in possession.
2. The suit was instituted in a Court of Small Causes. The defendant denied the title and possession of the plaintiff and set up various defences to the action, which it is unnecessary to refer to except that contained in the third paragraph of the written statement, where the defendant pleaded that the suit was not maintainable in a Small Cause Court as there were complicated questions of title involved in the suit. Upon this objection the plaint was returned by the Small Cause Court Judge to the petitioner for presentation to the proper Court. Probably the Court intended to proceed under Section 23 of the Provincial Small Causes Courts Act, which provides that when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immoveable property or other title which such Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. However that may be, the suit was tried by the Munsif in his ordinary jurisdiction. Several issues ware raised, two of them being whether the plaintiff had title to the disputed property and whether the story of plaintiff's possession was true. Both parties adduced evidence on the questions of title and possession and those questions were gone into by the Munsif, who decided them in favour of the plaintiff.
3. The defendant then appealed and the learned Subordinate Judge held that the question of title ought not to have been gone into in such a suit and dismissed the suit.
4. It is true that the decision on the question of title in a suit for damages cannot be binding on the parties. Bat the Small Cause Court is no doubt competent to investigate the question of title for the purpose of determining the defendant's liability for damages. See Elahi Buksh Mandal v. Ram Narayan Ghose 10 Ind Cas. 117 : 16 C.W.N. 288, though it cannot determine the question of title finally.
5. The learned Subordinate Judge refers to the case of Lep Singh Khasia v. Nimar Khasia 21 C. 244 : 10 Ind. Dec. (n.s.) 795, as supporting his view that the question of title cannot be gone into in a suit for damages. But that case does not support the proposition for which it is cited by the Court below. The learned Judges in that case (Banerji and Rampini, JJ.) held that the plaintiff in a suit would be entitled to a decree for damages without proof of title if it is found, first, that he has been in possession from before and up to the date of the institution of the suit, and secondly, that the defendant has failed to make out a better title to the property than the plaintiff. The learned Judges further pointed out that 'if the first point is decided in favour of the plaintiffs, they will be entitled to a decree, unless the defendants make out a better title; and if the first point is decided against the plaintiffs, they will not be entitled to a decree, unless they make out their title.'
6. It is clear, therefore, upon that decision that the plaintiff in such a suit is entitled to succeed if he shows that he was in possession from before and up to the date of the institution of the suit unless the defendant can show a batter title, and that if the question of possession is decided against the plaintiff, the plaintiff can show that he has got title to the land better than that of the defendant.
7. The learned Subordinate Judge has also relied upon the case of Giri Narain Chatterji v. Modhu Sudan Mukerji 18 Ind. Cas. 751 : 17 C.W.N. 324, where the decision in the case of Lep Singh Khasia v. Nimar Khasia 21 C. 244 : 10 Ind. Dec. (n.s.) 795 was considered. But in the case of Giri Narain Chatterji v. Modhu Sudan Mukerji 18 Ind. Cas. 751 : 17 C.W.N. 324 the plaintiff had already obtained a decree declaring his title and in execution of the decree had obtained symbolical possession against the judgment-debtor which as between them amounted to actual possession. The plaintiff, therefore, was entitled to damages in that case. The observations made with reference to the case of Lep Singh Khasia v. Nimar Khasia 21 C. 244 : 10 Ind. Dec. (n.s.) 795 were by way of explaining that decision and in any case were obiter.
8. As pointed out in the case of Elahi Buksh Mandal v. Ram Narayan Ghose 10 Ind Cas. 117 : 16 C.W.N. 288, 'It is notorious that before embarking on litigation as to title, litigants in this country frequently endeavour to obtain an advantage, or what they think will be an advantage, by securing in their favour a decree of a Small Cause Court or a decree under Section 9 of the Specific Relief Act or an order of a Criminal Court. That has no doubt been the object of the present plaintiff and it is not one which should be encouraged.'
9. But then, as pointed out above, it was upon the objection of the defendant that the case involved intricate questions of title that the plaint was returned from the Small Cause Court to the ordinary Court. The defendant raised issues on the question of title and possession; evidence was gone into on the points on both sides; and the Court of first instance decided those questions. In these circumstances, we think that the lower Appellate Court ought not to have thrown out the suit on the ground that the question of title could not be gone into. As already pointed out, the Court can go into the question of title, though it cannot finally determine it.
10. The learned Pleader for the opposite party has' relied upon certain observations of the learned Subordinate Judge on the question of possession. The learned Subordinate Judge says: 'Even if the plaintiffs are allowed to maintain the suit in the present form, it should be decided mainly on the evidence of possession and the plaintiff should not be allowed the advantage of any finding on the question of title in a suit like this....' And again he observes: 'Turning to the question of possession I do not consider it to be so very satisfactory and strong as would entitle the plaintiffs to a decree without coming to a finding upon the question of title.'
11. There is, therefore, no definite finding on the question of possession, because the learned Subordinate Judge was of opinion that it could not be decided without going into the question of title.
12. In these circumstances we think that the order of the lower Appellate Court should be set aside and the case sent back to that Court in order that the appeal may be disposed of upon all the questions raised in the case.
13. Costs, one gold mohur, to abide the result.