1. In the suit out of which this appeal has arisen the plaintiffs sued for recovery of Rs. 25 on account of the price o' trees which they alleged hive been wrongfully cut away by the defendants Nos. 1 to 4 from a plot of land in their possession and which they hid recently purchased from the pro forma defendants Nos. 5 to 7. The defendants Nos. 1 and 2 congested the suit and their case was that the land belonged to defendant No. 5 alone, the defendants Nos. 6 and 7 no concern with the land that; they had taken lease of this land from defendant No. 5 and were in possession of the and as tenants and further that they had purchased the trees alleged to have been cut from defendant No. 5 for Rs. 11. The Trial Court dismissed the plaintiffs suit. On appeal the lower Appellate Court found that defendants Nos. 6 and 7 had interest in the land in suit; that the interest of defendant No s was not that of a sole owner, and that, therefore, the defendant No 5 had no right to sell the entire trees to defendants Nos. 1 to 4. He decreed the plaintiffs' suit for Rs. 8-12-0.
2. The defendants Nos. 1 to 3 appealed. A preliminary objection has been raised by the respondent that in accordance with the provisions of Section 102 the Code of Civil Procedure no appeal lies in the present case contention is that the present suit is a suit of the nature cognizable by a Court of Small Causes as the amount the subject-matter does not exceed Rs. 5. The appellants on the other hand contend that the suit is one coming with the provisions of Article 35(ii) the Second Schedule of the provincial Small Cause Courts Act. This Article runs as follows: 'For an act which is or save for the provisions of Chapter. IV of the Indian Penal Code would be, oh offence punishable under Chapter XVII of said Code.' It appears that the defendant was prosecuted by the plaintiffs for the cutting of these trees and acquitted. Now it has been found that the defendants had right to some portion of trees. The mere taking of the trees by the defendants would not of itself amount to theft or criminal misappropriation unless this was done with dishonest intention. The criminality of the act of the defendants will, therefore, depend on the intention with which this act was done and not whether the particular act is saved by the provision of Chapter IV. We are of opinion that the present case does not come within Article 35(ii) of the Second Schedule of the Provincial Small Cause Court Act and therefore, no second appeal lies.
3. The appeal is accordingly dismissed with costs.