R.P. Mookerjee, J.

1. This appeal is on behalf of the plaintiff in a suit for recovery of Rs. 25 as compensation for cutting a way and appropriating a mango tree by the defendant. The plaintiff's case is that the defendant is a non-permanent thika tenant who has only the right to enjoy the fruits of trees that may be on the land but she has no right to cut away any trees even those grown by her. The defendant had removed a mango tree and the plaintiff had accordingly filed this suit for the recovery of Rs. 25 as compensation.

2. The defendant admits that she had cut and appropriated the mango tree planted by her predecessor-in-interest and she contends that she has a right to do so under the law.

3. The plaintiff's witness having admitted that the defendant and her predecessors had been in possession of the disputed land for over 100 years, the mango tree in question was held by the learned Munsiff, to have been planted by the defendant's predecessor--a case as made by the defendant. The particular land is now situate within the municipal area in the town of Serampore and is used as a homestead and garden. The learned Munsif held that the tenancy was governed by the Transfer of Property Act, the defendant had the right to cut away and appropriate the tree. The suit was accordingly dismissed.

4. An appeal was taken on behalf of the plaintiff to the Court of the Subordinate Judge, Hooghly. He held that under Article 35, Clause (ii) of Schedule II, Provincial Small Cause Courts Act, this being suit for damages for trees cut down and misappropriated, and even though involving a question of title to immoveable property, was cognisable by a Court of Small Causes. The learned Munsif who heard the suit was vested with the power to hear cases as a Judge of the Court of Small Causes upto a valuation of Rs. 300. Even though this suit was registered and heard as a money suit no appeal would lie against that decision.

5. The learned Subordinate Judge further held, on the merits, that the plaintiff cannot be allowed to make a new case for the first time that the tenancy having been created more than 100 years ago, was not governed by the provisions of the Transfer of Property Act but by the general law in vogue before the promulgation of the Transfer of Property Act. The learned Subordinate Judge held that that case, not having been made in the plaint, cannot be allowed to be made now. He accepted the evidence on behalf of the defendants that the particular tree had been planted 22 years ago although the plaintiff had alleged in the plaint that that tree had been planted by his predecessor-in-interest. The plaintiff's case, as in the plaint, was rejected. The Court, further, held that the defendant had not done any act of damage by taking away a tree grown by her mother-in-law. The appeal was accordingly dismissed.

6. The first point which requires consideration is whether any appeal lay to the Court of the Subordinate Judge against the order of dismissal of the suit passed by the learned Munsif. The value of the claim was put at Rs. 25 only. The Munsif who heard the suit had jurisdiction to try suits of a Small Cause Court nature and of the value of the claim. The suit was tried by the Munsif in his ordinary jurisdiction. That fact, however, did not take away the prohibition of an appeal contained in the Provincial Small Cause Courts Act. Mohini Mohan v. Sankardas Mohanta : AIR1924Cal487 . Unless the plaintiff can invoke the provisions of Article 35, Clause (ii) of Schedule II, Provincial Small Cause Courts Act, it must be held that no appeal lay against the decision of the Munsif. It is argued on behalf of the appellant that the allegations as made in the plaint constitute an offence of mischief within the meaning of Section 426 which falls under Chap. XVII, Penal Code. It has, however, been repeatedly pointed out that when there is a dispute between a landlord and a tenant with regard to the question as to whom the right to the trees or the right to the timber when the trees are felled, belongs is often a question of considerable difficulty. The right of a landlord and a tenant in respect of trees is very often a disputed right depending in some cases upon statutory provisions and in others upon custom or otherwise. A criminal case, either for mischief or misappropriation or for theft, would easily be defeated by the defendant urging that he had a right to appropriate the trees, as also the timber after felling them, and in the written statement as filed in this case that defence was actually raised. The tenant in such a case can very well plead that he bona fide believed that he was entitled to cut the trees and if under such bona fide belief he had felled the trees and removed the timber the provisions contained in chap, XVII, Penal Code, cannot at all be attracted. Such a suit is one which is not excluded from the cognisance of the Court of Small Causes, (Dildar Hossain v. Sadaruddin Chowdhury, 27 C. W. N. 469 : (A. I. R. (10) 1923 Cal. 568), Radhaballav Guha v. Panchcowri Seal : AIR1928Cal153 , Damodar Jha v. Baldeo Prosad, 9 Pat. 569 : (A. I. R. (17) 1930 Pat. 575) and Ram Prosad v. Sri Charn Mondal, 27 C. L. J. 594. (A. I. R. (5) 1918 Cal. 946).) In my view, therefore, the learned Subordinate Judge was correct in holding that no appeal lay before him against the decision by the learned Munsif.

7. It is to be noted that in the present suit the defendant is admitted to be a tenant of the plaintiff, the land is in the possession of the defendant, and the finding is that the tree in question was planted about 20 years ago by the mother-in-law of the defendant. The position might have been different if the claim was for damages for cutting of trees standing on the plaintiff's land, without any legal justification. Such a case of a wrongful cutting of trees, for which damages are claimed, amounts to an act of mischief or criminal trespass as denned in the Penal Code, (Commrs. of Pabna Municipality v. Nirode Sundari : AIR1942Cal544 .

8. In view of the fact that no appeal lay to the Court of the Subordinate Judge it must be held that the appeal preferred before the Subordinate Judge was rightly dismissed. There is no second appeal either against the decision and this appeal must accordingly be dismissed with costs.