Allah Bux v. Nurul Hasan

Sulaiman, A.C.J:— This was a suit for recovery of the price of a fallen tree. The suit undoubtedly was of a small cause court nature and was originally filed in the court having such jurisdiction. But the Court considered that as the tree stood in the zamindari a question of title was involved and accordingly it returned the plaint for presentation to the ordinary civil court under Section 23 of the Provincial Small Causes Court Act.

2. A preliminary objection is taken that no second appeal lay to the learned Judge of this Court and therefore no Letters Patent Appeal lies to us. In our opinion this objection is well-founded.

3. The transfer of a small cause court suit under Section 23 makes it a regular suit and first appeal no doubt lies. But the nature of the suit; continues to be a small cause court one and a second appeal is barred under Section 102 Civil Procedure Code.

4. The mere fact that a question of title was considered to have been involved in the case or has been incidentally decided would not permit of a second appeal. We may refer to the case of Samir Khan v. Basi Ram(1) with which we agree. No appeal therefore lies to the High Court. We accordingly allow the preliminary objection and dismiss this appeal with costs.

5. Appeal dismissed