W. Comer Petheram, C.J. and Beverley, J.
1. The facts of this case are as follow : In 1889 or 1890 the plaintiff sued the defendant for damages on account of the use and occupation of land in the Court of the Munsif of Dacca and obtained a decree. That decree was affirmed by the Subordinate Judge, but on second appeal to this Court the decree was reversed and the suit dismissed on the ground that the suit being cognizable by the Court of Small Causes the Munsif had no jurisdiction to try it.
2. That was on 11th February 1892.
3. The plaintiff then instituted his suit in the Small Cause Court at Dacca, the Judge of which Court returned the plaint with this order: 'It appears that the defendant takes exception to the plaintiff's title to the land. Unless that question is settled by a Court of competent jurisdiction, this Court cannot consistently assess damages for use and occupation of land. It is therefor meet to return the plaint to the pleader filing it under Section 23 of the Provincial Small Cause Courts Act for presentation in the ordinary Civil Court.'
4. The plaint was accordingly presented to the Munsif, who proceeded to try the suit and gave the plaintiff a decree. That decree, however, has been reversed by the Subordinate Judge on the ground that the Munsif had no jurisdiction to try the suit.
5. We are of opinion that under the provisions of Section 23 of the Provincial Small Cause Courts Act (IX of 1887) the Munsif had jurisdiction to try the suit. Sub-section (1) of that section runs as follows: 'Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof of a title to immoveable property or other title which such a 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.' The object and effect of this provision is obviously to give jurisdiction to the ordinary Civil Courts to hear and decide suits in respect of which a Court of Small Causes has made an order under the section. In the present case the order was regularly made by the Small Cause Court Judge, and the Munsif had therefore jurisdiction to entertain the plaint.
6. The rule must therefore be made absolute to set aside the order of the Subordinate Judge, who will proceed to hear the appeal upon the merits. The plaintiff will have the costs of this rule.
7. We may add that, having regard to Sections 646A and 646B of the Code of Civil Procedure it seems to us to be at least doubtful whether the Appellate Court would have been right in dismissing the suit for want of jurisdiction, even supposing that the order made under Section 23 of the Provincial Small Cause Courts Act had not expressly conferred jurisdiction upon the Munsif in this case.