1. This is a second appeal from an order passed by the District Judge of Aligarh, confirming an order passed by an Assistant Collector of Aligarh. The Assistant Collector had before him certain partition proceedings. In the coarse of these proceedings, the appellant raised a claim to the effect that the land which was being partitioned should be made subject to the payment of certain malikana and not be released from the payment of that malikana. The Collector decided that he was entitled to make any record which seemed to him just and proper under the circumstances and decided that the share of the respondent should not be burdened with any portion of the malikana in question. The District Judge held that this order of the Assistant Collector was an order not of a judicial character but of an executive character, and therefore not open to an appeal to the District Judge.
2. In appeal before me it is urged that the order was one from which an appeal lay to the Lower Appellate Court. In reply the learned vakil who holds the brief of the counsel for the respondents did not merely contend that the order was an order of an executive nature, but he further attempted to sustain the order on two other grounds. The first of these grounds was that the order in question was an order passed ex-parte, and that by Section 214 read with Section 219 no appeal lay. Sections 214 and 219 are sections which govern proceedings of a judicial nature in Revenue Courts. We have, however, held in this Court that when a Revenue Court proceeds to determine questions of title under Section 113 of the North-Western Provinces Laud Revenue Act of 1873, it is in effect, and must be deemed to be for that purpose, a Court of civil judicature. Section 113 expressly lay down, and is followed by Section 114 in laying down, that to all such proceedings the procedure laid down in the Code of Civil Procedure for trial of original suits and regarding the right of appeal applies. This contention therefore fails.
3. It was next urged that the objection of the appellant in these partition proceedings was not an objection contemplated by Section 113 of the Northwestern Provinces Land Revenue Act, inasmuch at it was not filed in the Revenue Court on or before the day specified for the filing of such objection, namely the 1st of December. It was filed on the 2nd of December, before the Revenue Court took action under Section 113, and I was referred to a case, Muhammad Abdul Karim v. Muhammad Shadi Khan I.L.R. 9 All. 429, in support of this contention. In that case, however, the objections dealt with were objections filed after action had been taken by the Court under Section 113. I cannot believe that that case was intended to include objections which were filed before the Court took action under Section 113, and specially objections which were dealt with by the Court acting under Section 113.
4. This contention therefore also fails. As regards the merits I have no doubt whatever that the question whether land to be partitioned is subject to the payment of malikana is a question of title. I therefore decree this appeal, set aside the order of the Court below and remand the case under Section 562 of the Code of Civil Procedure with directions to the Lower Appellate Court to readmit the case upon its file of pending appeals and dispose of the case upon its merits. Costs to abide the result.