P L D 1960 Dacca 608 (PLP)

4. The learned Munsif found that the suit is maintainable in its present form, that the suit is not barred by limitation, that the plaintiffs, have got possession in the suit land and that the defendants have wrongfully reaped away the paddy and are liable to compensate the plaintiffs of the loss sustained by them and be, accordingly, decreed the suit.

5. On appeal by defendant No. 1, the learned Subordinate Judge has found that the plaintiffs have right, title and interest in the suit land and the defendants have got no right, title or interest in the suit land and that the defendants grew the paddy but, as the defendants have no right, title and interest and plaintiff No. 1 has clear title in the suit land, he is entitled to get half the compensation for the use and occupation of the suit land from the defendants after deducting the cost of cultivation. Hence a cross‑objection has been filed by the plaintiffs against the finding of the learned Subordinate Judge that as the defendants have no right, title and interest and, as plaintiff No. 1 has clear title in the suit land, the plaintiffs are entitled to get half the produce and it is claimed on behalf of the plaintiffs that they are entitled to get the entire compensation claimed.

6. Mr. Abdul Rye Chowdhury, the learned Advocate who appears on behalf of the plaintiffs‑respondents has raised a preliminary objection as to the competency of this appeal and has contended that in view of the provision of section 102 of the Code of Civil Procedure this appeal is not competent inasmuch as the suit in question was in the nature of those cognizable by Courts of Small Causes and the valuation of the subject‑matter in suit is far below Rs. 500.

7. Now section 102 of the Code of Civil Procedure runs thus .‑

" No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject‑matter of the original suit does not exceed five hundred rupees." In this suit under appeal, the claim was Rs. 49 in the lower Court and in this appeal it has been valued at Rs. 24‑8‑

0. The question is whether the suit is in the nature of those cognizable by Courts of Small Causes. Plaintiffs' allegation in the plaint is that the defen dants forcibly reaped away the paddy grown by plaintiffs Nos. 2 and 3 as bargadars of plaintiff No. 1 in the land of plaintiff No. 1 and for that the plaintiffs filed a criminal case in which the defendants were acquitted and the plaintiffs have claimed the value of the paddy, alleged to have been wrongfully cut and taken away by the defendants from the plaintiff, as compensation. Now it is well settled that: " A suit to recover the value of paddy alleged to have beer, forcibly, wrongfully and maliciously cut and taken away by the defendant from the possession of the plaintiff is not cognizable by a Court of Small Causes". [Vide the case of Lalu Sardar and others v. Ohed Ali Mirdha (A I R 1919 Cal. 1035)]. So it cannot be said that this suit under appeal is of the nature cognizable by Courts of Small Causes. That being so, the suit is not hit by the provision of section 102 of the Code of Civil Procedure and, as such, a Second Appeal lies in respect of such a suit. The preliminary objection of Mr. Chowdhury has, therefore, got no substance, and it is overruled.

8. The learned Advocate on behalf of the appellant has contended that the lower Appellate Court has committed an error in decreeing the suit in favour of the plaintiffs even for half of the produce without entering into the question of title incidentally in the suit and that the Court ought to have found that a suit is not maintainable without a prayer for declaration of title and for making Ramaniranjan Bandopadhya a party to the suit. He has urged that the lower Appellate Court has found possession of the defendants and as the plaintiffs did not take actual possession as against him the plaintiffs cannot succeed in this suit without bringing a suit for declaration of title and recovery of possession I am, however, unable to accept this contention.

9. It appears from the judgment of the lower Appellate Court that he has incidentally gone into the question of title. It may be pointed out here that defendant No. 1 has not claimed any title or interest in the suit land. His definite case is that he is a bargadar under Ramaniran jan but both the Courts below have incidentally gone into the question of title and they have found that plaintiff No. 1 has acquired the right, title and interest of Ramaniranjan Bandopadhya in a Court sale and that he took delivery of possession through Court. The lower Appellate Court has further found that the defendants have no right, title and interest in the suit land. That being the finding, it cannot be said that the Courts below did not incidentally decide the question of title. The lower Appellate Court as a final Court of fact has found that the defendants grew the disputed paddy. As the plaintiffs acquired the interest, of Ramaniranjan Bando padbya and took possession of the suit land through Court and as the defendant grew the paddy in question as bargadar under Ramaniranjan, the plaintiffs are entitled to get compensation for use and occupation of the suit land from the defendants and the defendants have got no interest whatever. It is not the defendants case that he delivered the paddy to Ramaniranjan Banerjee. It is not, therefore, at all necessary to make Ramaniranjan Banerjee a party to the suit. In a suit of this nature the question of title should be incidentally gone into and this has been gone into by both the Courts below. That being so, the suit is maintainable in its present form without a prayer for establishment of title.

10. As regard the cross‑objection, I find no substance in it. The finding of the learned Subordinate Judge that the defendants grew the paddy in question cannot be disturbed in this Second Appeal, as it is a finding on a question of fact arrived at by a final Court of fact.

11. So, the learned Subordinate Judge has rightly deducted half the produce as the costs of cultivation, as he has found that the defendants grew the paddy in the land of plaintiff No. 1.

12. In the result, the appeal is dismissed with costs and the cross‑objection is dismissed without any order as to costs. K.B.A. Appeal dismissed.