1. Kharanta and Jhainku sued Kirpa and others in the Court of the Subordinate Judge of Chopal for a sum of Rs. 250/-, representing the price of grass grazed upon by their cattle. The defendants contested the suit, firstly, on the ground that the plaintiffs had no rights in the 'ghasni' and, secondly, their cattle had not grazed on the said 'ghasni'. The Subordinate Judge of Chopal granted a decree for Rs. 50/-. In appeal by the defendants, the Senior Subordinate Judge of Mahasu set aside the decree of the trial Court and dismissed the suit. The plaintiffs now seek to come up in second appeal. There, is an affidavit by Kharanta to the effect that the value of the property involved in the appeal is more than Rs. 3,000/-. As such it is argued that a second appeal is competent.
2. The suit, as already mentioned, was one to recover a sum of Rs. 250/- as damages caused by the grazing of the defendants' cattle. Therefore, the only property involved in the case was the grass, alleged to have been consumed or destroyed by the defendants' cattle. The suit was not one for declaration with or without consequential relief respecting the 'ghasni'. Consequently, it is idle to suggest that the value of the property involved is more than Rs. 3,000/-. Thus, having regard to the provisions of Para. 32(1)(a)(i) of the Himachal Pradesh (Courts) Order, no second appeal lies.
3. Learned counsel next prayed that this may be heard as a revision petition. The suit, as already mentioned, was for the recovery of Rs. 250/-. Having regard to Proviso (ii) to Para. 35 of the Himachal Pradesh (Courts) Order, the revision petition, is also incompetent. Learned counsel suggested that the act of the defendants in permitting their cattle to graze on the 'ghasni' amounted to a criminal offence and, therefore, the suit would not be cognizable by the Court of Small Causes, having regard to Article 35(ii) of Schedule II to the Provincial Small Cause Courts Act. I have already pointed out that the defendants did not admit that the plaintiffs had any rights in the 'ghasni' in question. The lower appellate Court has found that the defendants were within their rights, as 'burtandars', in cutting grass or allowing their cattle to graze on the 'ghasni'. Therefore, prima facie', the 'mens rea' to constitute a criminal offence under Chap. XVII, I. P. C. is absent. in--'Bachittar Singh v. Rahim Bakhsh', AIR 1938 Lah 759 (A), Beckett J. held that:
'Where the property is removed in the assertion of a contested claim or right, the removal would not constitute theft as defined in Section 378, I. P. C. Therefore, a suit for recovery of price of property is not covered by Article 35(ii).' On the same analogy, this suit will not be covered by Article 35(ii) of Schedule II. The suit would, therefore, be cognizable by a Court of Small Causes. Proviso (ii) to paragraph 35, Himachal Pradesh (Courts) Order, bars a revision petition in this case, since the value of the suit was less than Rs. 1,000/-,
4. At the end of his arguments, learned counsel made a statement to the effect that in, casethis Court came to the conclusion that neither asecond appeal nor a revision was competent, thenthe appellants would wish to be permitted to withdraw the suit with liberty to institute a fresh suit.I see no reason, 'prima facie', to entertain such arequest, which is, accordingly, refused. Consequently, the so called second appeal, which washeard as a revision petition, is rejected.