Decided on August 31,1900

SUBBAROW Appellant


- (1.) THE defendant's tenancy terminated in 1891. When this suit was brought there was no relation of landlord and tenant subsisting between the plaintiffs and the defendant. THE defendant was a trespasser, and the claim was one for mesne profits. It has been urged on behalf of the appellants that it appears from the claim itself that the mesne profits cannot be ascertained without the taking of an account, and it is sought to distinguish this case from the case reported in I.L.R., 22 M. 196, Seshagiri Aiyar V/s. Marakathammal, where it was held following a Full Bench decision of the Calcutta High Court, that a suit for mesne profits is cognizable by a, court of small causes. In a sense no doubt every claim for mesne profits involves the taking of an account but a suit for mesne profits is not a suit for an account, but a suit for damages and is not exempted from the jurisdiction of the Small Cause Court Act under Art. 31 of the 2nd Schedule to that Act. We think that the suit was a suit of a nature cognizable in a court of small causes and that the preliminary objection should be upheld.
(2.) THE second appeal is dismissed with costs.;

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