JUDGMENT Lindsay, J.
1. This is a defendants application under Section 25 of the Small Cause Courts Act. The suit was a suit, by the Zemindar to recover Rs. 10 on the allegation that the defendants who were his tenants had wrongfully cut and carried off a babul tree belonging to him, the plaintiff.
2. The defence set up was that the tree had been planted by the defendants, was their own property and that they had done no injury to the plaintiff whatever.
3. After a lengthy trial in the Court below, which was a Court of Small Causes, the claim of the plaintiff was decreed.
4. The defendants now come up and argue that the case was not within the cognizance of the Small Cause Court, and this plea is based upon the provisions of Article 35(ii) of the Second Schedule to the Provincial Small Cause Courts Act. This clause provides that a suit for an act which is, or save for the provisions of Chapter IV of the Indian Penal Code would be, an offence punishable under Chapter XVII of the said Code is a suit which a Small Cause Court cannot take cognizance of. The learned Counsel for the applicants has admitted that this plea was not taken in the Court below but he contends that as it goes to the root of the lower Court's jurisdiction it ought to be entertained here and allowed.
5. In the first place, I would observe that, even if the plea taken is a good one, I should not be disposed to interfere in this matter. I am not obliged to interfere under the provisions of Section 25 of the Small Cause Courts Act and it is obvious here that there was a long trial in the Court below in which all the witnesses put forward by the defendants-applicants were examined. I do not consider that this is a case in which the defendants should be entitled to another trial.
6. I am not disposed to accept this contention that the case falls within Article 35(ii) of the Second Schedule to the Small Cause Courts Act. Bearing in mind the defence which the applicants here set up it does not lie in their mouths to say that the act in respect of which the suit was brought was an act amounting to an offence. The defendants' whole case was that the tree was theirs and that they had cut it in exercise of their own rights. A person who cuts trees which he says to be his own cannot be said to be committing the offence either of theft or of mischief as defined in Chapter XVII of the Indian Penal Code. The plea, therefore, in my opinion has no force. I dismiss this application with costs.