Robert Stuart, C.J.
1. In this case I am clear that there is a question of proprietary title within the meaning of Sections 93 and 189, Act XVIII of 1873, and that the Judge was bound to hear and determine the appeal to him, and that being so, this special appeal was under Section 191 of the same Act competently preferred. The suit is to recover Es 5 on account of arrears of rent, and in defence defendant asserts a sub-proprietary right in respect of which a sub-settlement was made with her for revenue, and that she is not a tenant liable to pay rent. Thus a question of title is directly raised, and it is unnecessary to say more. We therefore allow this appeal, reverse the order of the Judge, and remand this case for disposal on the merits under Section 351 of Act VIII of 1859. Costs to abide the result.
2. The first and second pleas in appeal are valid. The plaintiff sues defendant as a tenant for the recovery of arrears of rent, and the defendant pleaded that she held the land as a proprietor subject to the payment of revenue but not of rent. The Collector decided that the settlement officer had determined that she was a sub-proprietor liable for revenue, and he held that this decision of the settlement officer was final and binding until set aside, and he therefore dismissed the suit. The settlement officer has thus in this suit determined the proprietary title of the defendant on the basis of the settlement officer's order. His decision in this suit is not the less a decision of proprietary title, because another Court may have already in another case decided the same. His decision no doubt is one of fact, whether the settlement officer has made any such order, but it involves for the purposes of this suit a decision of title when it determines the effect of the settlement officer's order on a title. It is possible that the order may have been wrongly interpreted, or is not binding, though I offer no opinion on this point. An appeal will therefore lie to the Judge, and I would reverse the decree and remand the case under Section 351 of Act VIII of 1859, for a trial on the merits. Costs to abide the result.