A suit for declaration of title and recovery of possession of immovable property is excluded from the jurisdiction of a Court of Small Causes. Consequently, the bar on appeals under Section 96(4) of the Code of Civil Procedure does not apply to such suits, regardless of their valuation.

JUDGMENT :

KAUSHIK GOSWAMI, J.

Heard Mr. N. Haque, learned counsel appearing for the appellants. Also heard Mr. S. A. Bakhtiar, learned counsel appearing for the respondents.

2. The instant second appeal has been preferred against the judgment dated 11.12.2020 and decree dated 18.12.2020 passed by the learned Civil Judge, Barpeta in Title Appeal No. 51/2017, whereby the judgment and decree dated 06.09.2017 passed by the learned Munsiff No.1, Barpeta in Title Suit No. 276/2012 were affirmed.

3. This Court, while admitting the second appeal by order dated 08.11.2021, framed the following substantial question of law:

“Whether the First Appellate Court was justified in dismissing the appeal as not maintainable under Section 96(4) of the Code of Civil Procedure on the basis that the valuation of the suit was Rs. 500/- without taking into consideration the Second Schedule of the Provincial Small Cause Courts Act, 1887?”

4. The brief facts of the case are that the respondents/plaintiffs instituted the suit in question before the trial Court seeking declaration of their right, title, interest and confirmation of possession over the suit land, as legal heirs, along with recovery of possession by evicting the appellants/defendants from the schedule land. The suit was valued at Rs. 500/- for the purpose of jurisdiction and court fees were paid accordingly. Upon conclusion of the trial, the learned trial Court decreed the suit in favour of the respondents/plaintiffs in the following terms:

“i. A decree declaring that the plaintiffs have right, title, interest and possession over the ‘A’ schedule land.

ii. A decree evicting the defendants from the ‘C’, ‘C1’, ‘C2’ and ‘D’ schedule land.

iii. A decree cancelling the mutation order in favour of defendant No.1 in respect of the ‘D’ schedule land by declaring the same null, void and inoperative in law.

iv. A decree cancelling the mutation orders in favour of defendants No.1, 2 and 3 in respect of the ‘B’ schedule land by declaring the same null, void and inoperative in law.”

5. The aforesaid judgment and decree of the trial Court were assailed by the appellants/defendants before the First Appellate Court. The Appellate Court, however, dismissed the appeal on the ground that a regular first appeal was not maintainable since the decree arose out of a suit of a nature cognizable by a Court of Small Causes and the valuation of the subject matter did not exceed Rs. 10,000/-. Aggrieved thereby, the present second appeal has been preferred.

6. Mr. N. Haque, learned counsel appearing for the appellants, submits that the Appellate Court failed to take into consideration the Second Schedule to the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as “the Act of 1887”), which specifically excludes suits for possession of immovable property from the cognizance of a Court of Small Causes. He submits that since the suit instituted by the respondents/plaintiffs was one for declaration of right, title and recovery of possession of immovable property, the same stood expressly excluded from the jurisdiction of a Court of Small Causes and, therefore, the Appellate Court was not justified in dismissing the appeal as not maintainable. He further contends, in the alternative, that even assuming the suit to be cognizable by a