1. There is a preliminary objection to this appeal which must prevail. According to the U. P. Tenancy Act, 1989, Section 265 (2), an appeal shall lie to the Commissioner from the decree of a Collector or Assistant Collector of the first class in all suits included in Group B of Schedule 4. This suit is included in Group B. According to Section 265 (3) 'an appeal lies to the District Judge ... in all suits in which a question of jurisdiction has been decided and is in issue in appeal.' There was an issue in the Assistant Collector's Court whether this suit was triable in the Court of that particular officer. This issue was decided in his own favour by the Assistant Collector who referred to an order from the Collector. This was one of the grounds of appeal but apparently it was not pressed because there is no mention of it in the Civil Judge's judgment. Presumably, the appellant did not care to argue in the Civil Judge's Court that the Assistant Collector who had tried the case was not empowered to try it. This was not a matter of much importance but the really important question was whether the Civil Judge was empowered to hear the appeal. The respondents' pleader might have argued in that Court as he has argued in this Court that the Civil Judge was not empowered to hear the appeal but he did not do so, perhaps because it escaped his notice or perhaps because he thought he would win the appeal and the matter would be closed. Learned Counsel for the appellant argued that the appeal lay in the District Judge's Court because the question of jurisdiction had been decided and was in issue in appeal. The word 'jurisdiction' in Section 265 (3), however, does not refer to jurisdiction within the revenue administration but to whether the suit or the issue had been rightly tried by a civil or a revenue Court, as the case might be. The District Judge is not empowered to decide whether the suit was rightly tried by this Assistant Collector rather than another. If no decision could be given by him on this point, no issue could be before him on appeal. It may be that this Assistant Collector was not empowered to try the suit but this can only be decided by the Commissioner or Board of Revenue which is responsible for the revenue administration.
2. No appeal lay to the District Judge and, therefore, no appeal lies to this Court. The judgment of the Civil Judge, dated 4th December 1941, is set aside as without jurisdiction. The memorandum of appeal along with copy of judgment and decree should be returned to the appellant for presentation to the proper Court. Parties will bear their own costs in the Civil Judge's Court. This appeal is dismissed, parties to bear their own costs in this Court.