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Judgment
The first point for decision is whether on the plaint as laid this appeal against order lies. "We think the claim is founded on an allegation of permissive occupation and is a claim for damages for use and occupation. We do not think the suit comes under Article 31 of the Schedule of the Provincial Small Cause Courts Act, and, therefore, it is a suit of a small cause nature.
The next point taken by the appellant is that the transfer of the suit to the original side u/s 23 of the Act constituted it an original suit, and that, therefore, a second appeal lies as if the suit, was an ordinary original suit. The answer to that is that the transfer u/s 23 does not and cannot change the nature of the suit and it is the nature of the suit which is the test u/s 102, Civil P.C., and Order 43, Rule 1(v). The last point urged is that if the suit though transferred, remains a small cause suit, no first appeal lies. The answer to that is that the suit does not remain a small cause suit though it remains of a small cause nature.
A first appeal is, therefore, valid; but u/s 102 a second appeal is barred. In Kollipara Seetapathy v. Kankipatti Subbayya [1910] 33 Mad. 323 and Abdul Majid v. Bedyadka Saran Das [1917] 39 All. 101 the suit had not been transferred u/s 23. It was from the beginning a small cause suit tried on the original side. The decision of the District Munsif was, therefore, the decision of a Court of Small Causes and final u/s 27, and no appeal lay. We hold that no second appeal lies and dismiss the appeal with costs.