1. This Rule is directed against an order by which the Subordinate Judge of the Assam Valley Districts in an appeal to his Court has directed the taking by the Court of first instance an additional evidence.
2. It appears that the suit in question, which was one for the recovery of damages for the appropriation of a jack tree, was originally instituted in the Court of the Munsif at Goalpara, the said Munsif being invested under Section 25 of the Bengal, Agra and Assam Civil Courts Act, 1887, with the jurisdiction of a Judge of a Court of Small Causes for the trial of suits cognizable by such Courts up to the value not exceeding Rs. 100. The suit was instituted on what is spoken of as the Small Cause Court side of his Court on the 1st August. When the written statement of the defendants-tenants was filed, it appeared to the learned Munsif that the case was one which involved the question of custom and title to immoveable property. He thereupon on the 14th September 1914 made the following orders: This case should be heard under the regular procedure and transferred to the Mnnsif,' and his next following order is, 'the case transferred to the Mnnsif.' He then proceeded to take evidence under the ordinary procedure and finally made a decree in favour of the plaintiff for a sum of Rs. 10. Against that decision the tenants-defendants preferred an appeal to the Judge of the Assam Valley Districts, and that appeal finally came on for hearing before the Subordinate Judge to whom we have already referred. In his Court a preliminary objection was taken that the suijj being one of a Small Cause Court nature no appeal lay to his Court. By nis order dated the 7th December 1916 that objection was overruled by the learned Sub-ordinate Judge, who eventually on the 7th July 1917 made the order of remand or rather the direction for the taking of further evidence of which we have already made mention. The present application of the plaintiff, who is the petitioner before us, is really directed against both those orders.
3. The contention before us is that the learned Subordinate Judge should have held that inasmuch as the suit was one of Small Cause Court nature, he should have on that ground dismissed the appeal which had been preferred to his Court. This is the question which in this Rule we have to decide, and inasmuch as it is not and cannot be disputed that the case as instituted was one of Small Cause Court nature, the question before us really is whether the Munsif's orders of the 14th September 1914 are to be regarded as an order made (under Section 23 of the Provincial Small Causes Courts Act, and is the acceptance of a plaint presented under that section to him in his character as Munsif and, therefore, as a Court having jurisdiction to determine questions of title. Obviously the procedure which he followed was not strictly in conformity with the language of Section 23. But from the judgment of 'the learned Munsif we find that his order was made in the presence and at the instance of both parties. That being so, when after that order made at the instance of both parties the plaint was transferred to and accepted by the Munsif and the trial proceeded in his Court, we are of opinion that we should agree with the Subordinate Judge in holding that the order was otie in effect made under the provisions of Section 23 of the Small Causes Courts Act, and that the order was followed by the presentation of the plaint to and its acceptance by a Court having jurisdiction to determine title.
4. It is, however, contended further that after the close of the hearing and before the delivery of judgment the tenants-defendants themselves presented a petition to the Munsif to the effect that the suit was one triable by the Court of Small Causes, that the plaint had not been Returned to the plaintiff in the manner provided by Section 23 of the Small Causes Courts Act and praying that that course should then be followed and the suit practically re-heard de novo. The Munsif did not accede to that prayer, but at the same time in his judgment gave expression to the opinion that the jurisdiction of the Court had not been affected and that leaving oat of consideration the order in question, it might be held that the suit was still triable as a Small Cause Court suit, with only this exception that the evidence had been recorded at length and not in the summary way. But we are not able to agree with the Munsif in that yiew. The plaint having been accepted as a plaint properly presented to the Munsif and having been tried out as a title suit, he could not at the close of the hearing turn round and say that be was in effect exercising the jurisdiction of a Small Cause Court Judge. But it is argued that this petition should be treated as Creating an estoppel in favour of the plaintiff and should have been treated by the Subordinate Judge and should be treated by us as creating a bar to the presentation and the hearing of the appeal in the Court of the Subordinate Judge. To that view also we are unable to accede. The Mnnsif in effect did not grant the prayer of the tenants-defendants and hence the doctrine of estoppel can have no application.
5. With regard to the merits of the order of remand the appeal being competent, only one question has been raised before us. The evidence now to be adduced is to be taken in order to elucidate the meaning of an obsolete or provincial expression. To the taking of such evidence, having regard to the provisions of Section 98 of the Evidence Act, there can of course be no objection. But it is said that while in the first Court the tenants-defendants relied upon evidence of custom, they now seek to shift their ground to base their defence upon grant. It is not, however, necessary for us to decide that point at this stage. In so far as we understand the judgment of the Subordinate Judge leading up to his order of remand, he treats the document as one which, if the meaning of the expression in question can be elucidated, may) be used as evidence corroborating the other evidence of custom adduced in the first Court by the tenants-defendants. This is, however, as we have already said a question which we really need not decide at this stage. It may be more appropriately considered and decided after the final decision of the appeal by the learned Subordinate Judge.
6. For the reasons we have given we discharge this Rule. The opposite party is entitled to his costs, which we assess at three gold mohurs.