JUDGMENT

Lindsay, J. - This is a defendants application u/s 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 th