Judgment Banerji, J. 1. The only question, which arises for decision in this case, is whether the suit is exempted from the cognizance of the Small Cause Courts, because the claim falls under Article 35(ii), Schedule II of the Small Cause Courts Act. The plaintiff-opposite party brought small cause court suit No. 242/86 of 1953 for price of bamboos, worth Rs. 25/-, standing on plot No. 3185. The defence was that the bamboos stood on plot 3192, but, if, on measurement, it was found that this plot and plot No. 3185 had been amalgamated, the plaintiff was not entitled to any damage, as his claim was barred by limitation. The learned Small Cause Court Judge held that the suit was triable by him, and that the bamboos actually belonged to the plaintiff. Accordingly, a decree for Rs. 25/- was passed against the defendants. 2. Mr. Prem Lall, appearing on behalf of the defendants-petitioners has urged only one point, which is that Article 35, Clause (ii), of Schedule II, of the Small Cause Courts Act (9 of 1887) bars jurisdiction of a Small Cause Court in trying a suit of this nature. In support of his contention, he relies on four decisions, namely, -- Ramprosad Paramnik V/s. Sricharan Mandal, 1918 Cal 943 (AIR V 5) (A); -- Commissioners of Pabna Municipality V/s. Nirode Sundari Dasya, 1942 Cal 544 (AIR V 29) (B); -- Govind Rai V/s. Digbijoy Singh, 1938 Pat 96 (AIR V 25) (C) and -- Ayub Haji Suleman V/s. Jainuddin Gulamali, 1926 Bom 362 (AIR V 13; (D). 3. Mr. Purnendu Narain, appearing on behalf of the opposite party, however, relies on the following decisions in support of his argument that a Small Cause Court has jurisdiction to try a suit of this nature. These decisions are the following : -- Damodar Jha V/s. Baldeo Prasad, 1930 Pat 575 (AIR V 17) (E); -- Puttangowda Mallangowda V/s. Nilkanth Kalo1, 37 Bom 675 (PB) (P); -- Sakhya Baba v. Sadashiv Parsharam, 1930 Bom 361 (AIR V 17) (G); -- Bharosa Singh V/s. Jhauri Sao, 1936 Pat 428 (AIR V 23) (H); -- Nilkanth Ganesh V/s. Dhondya Ganu, 1942 Bom 316 (2) (AIR V 29) (I) and -- Perumal V/s. Perumal Reddiar, 1947 Mad 404 (AIR V 34) (J). 4. Mr. 4. Mr. Prem Lalls contention is that, when it is stated in the plaint that the defendants cut away and removed some bamboos or trees from the plaintiffs land, the act constitutes either an offence of theft or mischief and, accordingly, by virtue of Article 35 (ii), a Small Cause Court cannot take cognizance of the suit. His main reliance is on the Division Bench case of the Calcutta High Court reported in 1918 Cal 946 (AIR V 5) (A). In that case, the plaintiff had pleaded that the defendant had unlawfully cut and removed the tree and the crops, and it was observed that, if the acts attributed, to the defendant were true, he was at least guilty of mischief, if not of theft, and consequently, the suit could not be tried by a Court of Small Causes. This case was distinguished by our High Court in the case of 1930 Pat 575 (AIR V 17) (E). In the Patna case it was stated in the plaint that the defendant cut away some barn-boos but the timber of the bamboos standing on particular plots exclusively belonged to the plaintiff, and those standing on the other plots belonged to him and also to the defendant jointly. At page 578, it was observed that the Calcutta High Court had taken a contrary view in another case, and the facts in the case reported in 1918 Cal 946 (AIR V 5) (A) were different. In 1942 Cal 544 (AIR V 29) (B), which is a Single Bench decision, it was observed that a suit by the plaintiff for damages for cutting of trees by the defendants standing on plaintiffs land without any legal justification fell under Schedule II, Article 35, Clause (ii), "as the wrongful cutting of trees for which damages are claim-ed amounts to an act of mischief or criminal trespass as defined in the Penal Code." The various cases on the point were not discussed, and it is difficult to know what exactly the language of the pleadings of the parties was in this case. In the case reported in 1938 Pat 96 (AIR V 25) (C), his Lordship Varma J. distinguished the two cases reported in 1930 Pat 575 (AIR V 17) (E) and 1936 Pat 428 (AIR V 23) (H), holding that where a person wrongfully cut away certain trees in the fruits of which the plaintiff owned a share without the plaintiffs consent, the suit for damages fell under Article 35, Clause (ii), and was triable under the ordinary procedure. With very great respect, I fail to see any substantial distinction between the facts of this case and that reported in 1930 Pat 575 (AIR V 17) (E). In 1923 Bom 362 (AIR V 13) (D), his Lordship Macleod C. J., held that a suit was barred under Article 35, Clause (ii), because the plaintiff sought recovery of compensation on account of the defendants unlawful action. His Lordship presumed that the act alleged against the defendant constituted an offence of theft. The wordings of the plaint in the Bombay case are not before me, and, if his Lordship meant that a mere statement by the plaintiff about the defendants unlawful action would make it an offence of either theft or mischief, I would rather respectfully disagree. I fail to understand how the case reported in 1942 Bom 316 (2) (AIR V29) (I), can be of any assistance to the petitioners, as their Lordships have hold that the question whether an act sued upon constitutes a crime must, no doubt, depend upon the nature of the pleadings and particularly the plaint, it is true that in this case there was an averment on the part of the plaintiff about the defendant having wrongfully taken fruits from the plaintiffs tree, but from that allegation alone it cannot be judged that it was a case falling under Chap. XVII, Penal Code. It would, indeed, be hazardous to jump to the conclusion regarding the criminal nature of the act of the defendant merely because the plaintiff alleged that the defendant had wrongfully removed fruits from the tree, I would, accordingly, disagree with this decision if it means that the act of the defendant necessarily falls within the ambit of one of the offences under Chapter XVII, Penal Code, because the plaintiff stated that the defendant had wrongfully taken away the fruit. 5. 5. Article 35, Clause (ii) reads as follows : "(35) a suit for compensation- (ii) 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;" This Article is in the 2nd Schedule which relates to suits excepted from the cognizance of Courts of Small Causes. It follows, therefore that, if an act is an offence punishable under Chapter XVII of the Indian Penal Code or would be an offence punishable under the same Chapter save for the provisions of Chapter IV of the Indian Penal Code, which relates to the general exceptions, the suit cannot be tried by a Court of Small Causes. Chapter XVII relates to offences against property and is concerned with the offences of theft, extortion, robbery and dacoity, criminal breach of trust, criminal misappropriation of property, receiving of stolen property, cheating, mischief and criminal trespass. According to Mr. Prem Lall, the acts averred in the plaint either constitute an offence of theft or of mischief and was, therefore, beyond the jurisdiction of the Court of Small Causes. In order to ascertain whether the acts constitute an offence under Chapter XVII of the Indian Penal Code, the language of the pleadings of the parties, especially the plaint, has to be examined carefully and the result of the examination will, in all cases, govern the question whether a particular suit is cognizable by the Small Cause Court. In 1930 Pat 575 (AIR V 17) at p. 578 (E) it was observed as follows : "Now when upon the case laid in the plaint it is clear beyond any shadow of doubt that the defendant had committed an offence punishable under Chapter XVII of the Indian Penal Code, the jurisdiction of the Small Cause Court to try such a suit is barred; but where upon the facts stated in the plaint the case against the defendant is wrongful or illegal but not necessarily penal so as to bring him within the purview of the Indian Penal Code, the jurisdiction of the Small Cause Court is not at all barred. In short and without referring to the other circumstances, if upon the plaint a question of a bona fide claim on behalf of the defendant is obvious, then Article 35(ii) will have no application." In the case of 1936 Pat 428 (AIR V 23) (H) his Lordship Saunders J. relied upon this Division Bench case and, after quoting these very observations, held that there was no bar under Article 35, Clause (ii) where a suit is brought for compensation for a crop of paddy which the defendants were alleged to have wrongfully cut. In 1947 Mad 404 (AIR v 34) (J) Rajamannar J. (as he then was) held that, whether a suit does or does not fall within the Article is prima facie a matter to be decided upon the language of the plaint. In 1930 Bom 361 (AIR V 17) (G) a Division Bench of the Bombay High Court also observed as follows : "Whether it docs or does not so fall is prima facie a matter upon the pleadings and particularly upon the plaint." Now, I have to examine the plaint before me in the light of what has been held in the above-mentioned cases for judging if the suit is barred by Article 35, Clause (ii). Only two paragraphs of the plaint are necessary to be construed. In para 2 it is stated as follows : "That the defendants on 21-9-52 cut away 15 bamboos worth Rs. 25/- standing in S. P. No. 3185, khata No. 1113 of village Pitahi Muhammadpur Harsingh. P. S. Sadr, Munsifi and district Muzaf-farpur belonging to the plaintiff." Paragraph 4 is in the following terms : That the plaintiff submits that the act of the defendants in catting the bamboos standing on the land of the plaintiff is illegal and the plaintiff is entitled to damages for the same and without recourse to suit the plaintiff cannot get relief, hence this suit." I am to hold from these facts stated in the plaint if the act of the defendants constituted an offence of either theft or mischief. There is no allegation in the plaint that the defendants took away the bamboos intending to take them dishonestly. In order to constitute an offence of theft, the prosecution is bound to prove the dishonest intention on the part of the accused. There is no allegation in the plaint that the defendants took away the bamboos intending to take them dishonestly. In order to constitute an offence of theft, the prosecution is bound to prove the dishonest intention on the part of the accused. No such dishonest intention was attributed to the defendants by the plaintiff in his plaint and, accordingly, the act disclosed in the two paragraphs mentioned above did not constitute an offence of theft. According to Sec. 425, Penal Code, which relates to the offence of mischief, the prosecution has to prove intention or knowledge on the part of the accused for the wrongful loss or damage. The plaint does not disclose that the defendants intended or knew that they were likely to cause wrongful loss or damage to the plaintiff. Jn order to oust the jurisdiction of the Small Cause Court, the defendants were bound to establish that the ingredients of the offence of theft or of mischief had been satisfied. This they have signally failed to do. As pointed out by Saunders J. in the case reported in 1936 Pat 428 (AIR V 23) (H), that in order to oust the jurisdiction of the Small Cause Court the plaint must present facts of which a Criminal Court could take cognizance. If it is stated in a petition of complaint that certain trees had been wrongfully cut, a Criminal Court is hardly expected to find the accused guilty in absence of any dishonest intention or knowledge on the part of the accused. Therefore, if a plaint merely states that the defendants had removed crop or timber wrongfully or illegally, that fact alone would not constitute an offence either of theft or of mischief. In the case before Saunders J. it was pleaded that the defendants had wrongfully cut and removed the crop of paddy, and his Lordship held that, as on these facts no action could be taken on complaint by a Criminal Court the Small Cause Court could take cognizance of the case. In the case reported in 1947 Mad 404 (AIR V 34) (J), it was pleaded that the accused had removed the tamarind, thereby causing loss to the plaintiff. Even then his Lordship Rajamannar J. refused to accept the contention advanced on behalf of the defendants that the jurisdiction of the Small Cause Court was ousted. In the case reported in 1947 Mad 404 (AIR V 34) (J), it was pleaded that the accused had removed the tamarind, thereby causing loss to the plaintiff. Even then his Lordship Rajamannar J. refused to accept the contention advanced on behalf of the defendants that the jurisdiction of the Small Cause Court was ousted. It is true that in the case reported in 1926 Bom 362 (AIR V 13) (D), a single Judge of the Bombay High Court held that Article 35, Clause (ii) barred the jurisdiction of the Small Cause Court because the plaintiff admitted to have sought recovery of compensation on the ground that the defendants action was unlawful but, as already stated, I feel myself unable to agree with this view. 6 The ratio of the decisions is, therefore, this : in order to find out whether a Small Cause Court has, jurisdiction to try cases of this nature the Court has to look to the pleadings of the parties with special reference to the pleading of the plaintiff. It has then to see whether the admitted facts or the facts stated in the plaint constitute an offence under Chapter XVII of the Indian Penal Code. If it finds that the language of the pleadings, especially that of the plaint, is such as would disclose the commission of an offence against property under Chapter XVII of the Indian Penal Code, it will return the plaint for presentation before a proper forum. In the present case the learned Small Cause Court Judge was justified in holding that the suit could be tried by him as a Small Cause Court suit, and, as there is no error of law in this finding, the application appears to be without merit. It is dismissed with costs hearing fee Rs. 32/-.