C.B. Capoor, J.C.
1. This petition in revision by Ata Mohammad is directed against an order of Shri B.S. Gautam, Senior Subordinate Judge, Chamba, exercising powers of a Judge of the Court of Small Causes, whereby the suit filed by respondents Nos. 1 and 2 against the petitioner and respondent No. 3 for recovery of a sum of Rs. 30/- as damages was decreed for recovery of a sum of Rs. 20/-.
2. The plaintiffs-respondents' case was that the ghala named Gawarara-ka-nala measuring 18 biswas comprising Khasra No. 35 situate in village Siyun belonged to them and was in their possession, that in the month of Asoj 2015 B. the petitioner and the defendant-respondent No. 3 cut 160 bets of grass from the aforesaid ghala and appropriated the same and that the aforesaid 160 bets were of the value of Rs. 30/- at the rate of -/3/- per bet
3. The suit was resisted by the petitioner and defendant-respondent No. 2 on the grounds that they have been in possession of the aforesaid ghaia for about 80 to 90 years and possessed bartandari rights therein and their cattle have been going through it to the watering place and they have been exercising their bartanadri rights and the right of cutting grass from the aforesaid ghala daily and the plaintiffs-respondents were not entitled to claim any sum as compensation. It was denied that the plaintiffs-respondents were the owners of the aforesaid ghala.
4. The learned Judge repelled the defence version, and held that the petitioner and defendant-respondent No. 3 had cut 160. bets of grass as alleged in the plaint. He fixed the price of each bet at -/2/- and decreed the suit for recovery of a sum of Rs. 20/- as compensation.
5. The first point that has been urged on behalf of the petitioner is that initially the suit was tried on the regular side and it was during the course of argument that it struck the presiding officer to treat the suit as a small cause one. A reference to the register of suits maintained in the Court of the Senior Subordinate Judge indicates that initially the suit was registered as a regular one but it was later on either on the same day or on the next date registered as a Small Cause Court suit vide the statement made by, the counsel for the parties dated 20-4-196.1. A perusal of the order-sheet does not bear out the petitioner's contention that it was during the course of argument that it dawned upon the presiding officer to treat the case as a Small Cause Court one. It is true that the judgment was signed by the presiding officer as Senior Subordinate Judge but that by itself would not lead to the conclusion that the suit was tried on the regular side.
6. The next point that has been urged on behalf of the petitioner is that the present suit was for compensation For an act which is punishable under Chapter XVII of the Indian Penal Code and as such it was excepted from the cognizance of a Court of Small Causes in view of Article 35 (ii) of the Second Schedule to the Provincial Small Cause Courts Act (IX of 1887). I am, however, unable to accept that contention. No allegation has been made in the plaint indicating that the petitioner and the defendant-respondent No. 3 were guilty of any penal act.
The relevant allegations made in the plaint are that the plaintiffs-respondents Nos. 1 and 2 were the owners of the disputed ghala and the petitioner and the defendant-respondent No. 3 had cut 160 bets of grass out of the aforesaid ghala and thereby caused damage to the tune of Rs. 30/-. If the contention, advanced on behalf of the petitioner were to be accepted Article 35 (ii) would become a dead letter and every suit for compensation will be out of the cognizance of a Court of Small Causes for such a suit is invariably based on the allegations that the plaintiff is the owner or is in possession of the property in respect of which compensation is claimed and that the defendant has no right to use it or appropriate its produce or profits.
7. The question as to which class of suits is excepted from the cognizance of a Court of Small Causes by virtue of Article 35 (ii) has been the subject-matter of many a decision. The current of judicial authority has, however, not been uniform.
8. In the case of Damodar Jha v. Baldeo Prasad, reported in AIR 1980 Pat 575 the following observations were made:-
'Now, when upon the case laid down in the plaint it is clear beyond any shadow of doubt that the defendant had committed an offence punishable under Chapter 17, I. P. C., the jurisdiction of the Small Cause Court to try such a suit is barred; but where upon the facts stated in. the plaint the case against the defendant is wrongful or illegal but not necessarily penal so as to bring him within the purview of the Indian Penal Code, the jurisdiction of the Small Cause Court is not at all barred.'
That suit was brought to recover price of the bamboos said to have been cut and taken away by the defendant as tenant of the plaintiff without any right or without the permission of the plaintiff and it was held to be cognizable by a Court of Small Causes.
9. In the case of Achambhit Jha v. Bankey Behari Lal, reported in AIR 1930 Pat 335 the plaintiff had claimed a sum of Rs. 109/- as damages on account of the cutting of timber by the defendant tenant. No allegation had been made in the plaint that the timber had been dishonestly misappropriated by the defendant and it was. held that the cause of action did not disclose a criminal offence but was one known to English law as an action in conversion or detenue.
10. In the case of Sakhya Baba Lataka v. Sadashiv Parasharam, reported in AIR 1930 Bom 361 the plaintiffs alleged that defendants Nos. 1 and 2 were annual tenants who without their permission wrongfully cut certain trees belonging to them and claimed damages to the extent of the alleged value of the trees. The defendants pleaded that they were permanent tenants and that the trees had been planted by their ancestors and belonged to them. The case was held to be within the cognizance of a Court of Small Causes.
11. The Lahore High Court in the case reported in AIR 1922 Lah 451, Shiv Gir v. Khazan Gir held that where in the plaint there is no definite allegation that the defendants had the intention requisite for the commission of the offences mentioned the suit is not excepted under the article.
12. In the case of Deoki Ram v. Harakh Narain Lal, reported in AIR 1926 All 760 the allegations in the plaint were that the defendants unlawfully colluded and forcibly cut and appropriated a tree without any right in spite of the remonstrances of the plaintiff's servant and those allegations were held to amount to an offence of theft and mischief and the suit was held to be excepted from She cognizance of a Court of Small Causes.
13. In the case of Raghubar Dayal v. Mulwa, reported in AIR 1927 All 288 it was held that where the plaint discloses no allegation of a crime, Article 35 (ii) does not apply. The AIR 1926 All 760 case (supra), was not referred to in this case but there does not appear to be any real conflict between the two.
14. The decisions of the Calcutta High Court on the point under consideration are conflicting. The case of Ram Prosad Pramanik v. Sricharan Mandal, reported in 41 Iad Cas 278 : (AIR 1918 Cal 94(3) was for compensation for wrongfully cutting a tree grown and misappropriating crops raised by the plaintiff on his land and was held to be excepted from the cognizance of a Court of Small Causes but in a later case, reported as Mirza Dilbar Hussain v. Sadaruddin Choudhury, AIR 1923 Cal 568, a contrary view was taken.
15. The conclusions flowing from the majority of those decisions are that the question as to whether Article 35 (ii) applies or not has to be decided on the allegations made in the plaint and that a case would not be covered by the aforesaid article if file allegations made in the plaint do not contain the ingredients of an offence under Chapter XVII of the Indian Penal Code. In other words, the plaint should disclose the commission by the defendant of an offence under the aforesaid Chapter of Indian Penal Code. While it is not necessary that the offence should be described with reference to the section or sections of Indian Penal Code the allegations made in the plaint must contain the ingredients of the offence.
16. In view of the allegations made in the plaint the present suit was cognizable by a Court of Small Causes and the contention advanced on behalf of the petitioner is repelled.
17. Since a question of title was involved in the case it was open to the learned Judge to return the plaint to be presented to a Court having jurisdiction to determine that question as provided by Section 23 of the Provincial Small Cause Courts Act but if it did not do so and entertained the suit it could not be said to have exercised a jurisdiction not vested in it. It may, however, fee observed that if in a case cognizable by a Court of Small Causes a question of title is involved it would be advisable for the Court to return the plaint for presentation to a Court on the regular side.
18. In conclusion, the petition in revision fails and is hereby dismissed with costs.