Lancelot Sanderson, C.J.
1. In this case the suit was brought by the plaintiffs asking for a declaration of their title, and also that their possession should be confirmed, and further that a decree might be passed in t their favour for a sum of Rs. 49-8-0 by way of mesne profits: and, then the1 plaintiffs went on and claimed in the alternative that if for any reason the Court adjudge the plaintiffs to be dispossessed, or not in possession after the institution of the suit, a decree might be passed for khas possession; and, finally they prayed for any relief which the Court might find' them entitled to according to the principles of equity.
2. In my judgment the rights of the parties in this case are plain: It appears that the Courts in this case have decreed the plaintiffs title and there is no dispute about that matter. The present defendants in the year 1907 brought an action against the plaintiffs on the ground that the present plaintiffs had taken away the crops which the defendants had grown. That action was brought in the Small Cause Court and the present defendants obtained a decree for a sum of Rs. 43-8-0, on the ground that the present plaintiffs had deprived the present defendants of the crops in question. Then the present plaintiffs brought this suit in the following year.
3. The learned Judge of this Court has held that inasmuch as the claim was not for possession but was for confirmation of possession, the amount of mesne profits, which the first Court had awarded, namely Rs. 49-80, could not be decreed. It may here say that the sum of Rs. 49-80 was made up of the Rs. 43-8-0 and, suppose, interest from the time it was paid until the institution of this suit.
4. Now, my first, observation about that part of the learned Judge's judgment is that there was in the suit an alternative claim for possession, and, therefore, it cannot be said that the plaintiffs' claim was confined to confirmation of possession. But, in my judgment, when we look at the facts of the case we find that the plaintiffs claimed, Rs. 49-8-0 as mesne, profits, and their claim to that must have been based upon the allegation that the defendants had been in possessions during the year 1907 and had been growing crops on the land and had received the value of the crops, namely Rs. 43-8-0, and had not paid any rent to the plaintiffs. That is really the gist of the case; and, I think it would be wrong for us to be bound -by any technicalities with regard to the form of the statement of claim, even if the plaintiffs were debarred by the form of the statement of claim; which; I think, they are not.
5. The learned Judge went on td say, that there was no second appeal, in this case, because Section 102 of the Civil Procedure; Code provided that in such a case there would be no second appeal. As has already been pointed out by my, learned brother. Mr. Justice Mookerjee during the course of the argument, with great respect to the learned Judge, there is really, nothing in that point. That Section says: 'No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes when the anoint or value of the subject-matter of the original suit does not exceed five hundred rupees.' This was a suit in, which the claim was amongst other things for a declaration of title and being a suit, for a declaration of title, it could not be brought in the Small Cause Court. There fore Section 102 has no application to it.
6. For these reasons I think that this appeal should be allowed, and the decree of the Court of first instance restored, that is to say, the plaintiff's title to the disputed land should be declared and his possession of it should be confirmed, and a decree for the amount of Rs. 49-8-0 should be awarded to them.
7. The plaintiffs are entitled to their costs in all the Courts, including the costs of this appeal.
7. I agree.