Melvili, J.:— This suit was brought by the plaintiff, in the Court of Small Causes at Ahmedabad, to recover “damages on account of rent”, in consideration of the occupation of a house by the defendant for three years. The plaintiff alleged that the defendant had had occupation for four years and seven months; but that, as a portion of the claim was barred by limitation, the suit was confined to the amount due for three years. In her deposition the plaintiff alleged that the defendant had removed her lock from the door of the house, and occupied it without her permission.
On the face of the plaint the suit would appear to be what in England would be called an action for use and occupation; but, as such, it should arise out of contract, and could not be maintained in the absence of an express or implied contract to pay a reasonable sum for the occupation of the house. It was on this ground, and also because we were inclined to think that a Court of; Small Causes had not jurisdiction to determine the question at issue between the parties, that we granted a rule to show cause why the decree of the Judge of the Small Cause Court should not be set aside.
At the hearing of the rule it has been argued that the action is an action of trespass, and that, claim being one for damages, the Small Cause Court had jurisdiction, notwithstanding that a question of title may incidentally have arisen. It is true that this Court has held that a Small Cause Court is not ousted of its jurisdiction merely because a question of title may incidentally arise, and that it may determine such question, so far as may be necessary, for the purpose of the suit. But the present is not a case in which the real object of the suit is to obtain a remedy which a Small Cause Court may properly give, and in which a question of title to immoveable property only incidentally crops up for decision. It is an action of trespass, (if that be its nature,) of which the sole object manifestly is to try the title to the house. It would be very objectionable if persons out of possession were thus allowed to harass persons in possession, by obtaining from a Small Cause Court periodical decrees for damages or mesne profits, founded upon a decision as to title which the defendant would, from the constitution of the Small Cause Court, be debarred from bringing under the cognizance of the superior Courts. The plaintiff's proper remedy, if she has been dispossessed of her house by the defendant, is to bring an action of ejectment in the ordinary Civil Courts,—coupling with her demand, if she see fit, a claim for mesne profits for the period during which the defendant may have been in occupation. We make this rule absolute, and annul the decree of the Small-Cause Court; but as no objection to the jurisdiction was there taken by the defendant, we direct that the parties bear their own costs throughout.