V V SRINIVASA AIYANGAR, HIGH COURT VAKIL, RECEIVER TO THE ESTATE OF A MUNISWAMY CHETTY, DECEASED Vs. VKANNAPPA CHETTI

JUDGEMENT

(1.) The first question in this appeal is whether a suit for damages for cutting and carrying away trees is a suit for land or other immovable property within the meaning of Clause 12 of the Letters Patent as held by Sankaran Nair J, as, if so, the suit was properly dismissed as the land on which the trees were growing was situated outside the jurisdiction. I do not think the question whether a decision involving the question of title in such a suit would be res judicata in a subsequent suit for the land is very relevant to an inquiry what is included in the words "suit for land or other immovable property," and assuming that a suit for cutting and carrying away trees does not come within these words, a decision in such a suit on a question of title by a Court other than the Court within the limits of whose jurisdiction the land is situated would not in my opinion under Section 11 of the Code of Civil Procedure be res judicata in a subsequent suit in the proper Courts for the recovery of the land itself as the first Court was not competent to try the subsequent suit. I cannot therefore agree with the learned Judge that the test of res judicata applies to a case like this.

(2.) English law had its writs of right, writs of entry, and assize of novel disseisin and the action of ejectment which superseded them, but knew of nothing so simple as "a suit for land or other immovable property" and English decisions therefore threw little light on this expression, which so far as appears, is first found in the Civil Procedure Code of 1859 drafted under the advice of Sir Barnes Peacock, and was reproduced in the Letters Patent of the three High Courts with original jurisdiction. These words have been explained or expanded in the subsequent Codes, and Section 16(e) of the present code expressly includes suits for compensation for wrong to immovable property among suits triable only where the immovable property is situated. Alterations in the Code subsequent to the Letters Patent are of course of no assistance except in so far as they can be. regarded as merely " declaratory of what was already included in these words when first enacted in the code of 1859.

(3.) In Manappa Mudali v. S.T. McCarthy (1881) I.L.R. 3 M 192, it was held that suit for trespass to land were cognisable by the court of small causes under the Act then in force which gave jurisdiction in suits for damages up to Rs. 500, and it was pointed out that the Act contained no such restriction as occurred in the Country Courts Act 9 and 10 Viet. C. 95, Section 58 restricting them from taking cognisance of any suit, in which the title to any corporeal or incorporeal hereditaments etc., shall be in question."