Henry Richards, C.J., Pramada Charan Banerji and Ryves, JJ.
1. This is a reference from the Commissioner of Gorakhpur under Section 195 of Act II of 1901. The plaintiff sued in the Revenue Court to recover possession of a certain plot of land. He alleged that he was the occupancy tenant of the plot in question and that the defendant was his sub-tenant. The defendant pleaded that he was in possession of the plot, not, as the sub-tenant of the plaintiff, but that he was the proprietor and that the plot in question was his khud kasht. The Assistant Collector of the first class decreed the plaintiff's claim. The defendant appealed to the District Judge. The District Judge held that no question of proprietary title was in issue and that accordingly no appeal lay to him. The memorandum of appeal was returned for presentation to the proper court. It was then presented before the Commissioner, who has made the present reference.
2. In our opinion a question of proprietary title was in issue in the court of first instance and was also a matter in issue in the appeal within the meaning of Section 177, Most distinctly the defendant, alleged that he was the proprietor and that be was in possession as such of the plot. The plaintiff may have been prepared to admit that the defendant was a co-sharer, but he denied that he was in possession as proprietor, alleging that he himself was the occupancy tenant and that the possession of the defendant was as a sub-tenant to him, In the case of Dal Chand v. Shamla and Parma (1905) 2 A. L. J. 176. a Bench of this Court of which one of us was a member took the view that Clause (e) of Section 177 applied and that an appeal lay to the District Judge. However in the case of Udit Tiwari v. Bihari Pande 1913 l.L.R.35 All.521 a contrary view was taken, although the facts were identical. The learned Judges say 'We cannot see that the defendant's title as proprietor was ever denied by the plaintiff. Certainly the latter never claimed to be himself the proprietor of the land in dispute, or to have any right in the same, other than the right of an occupancy tenant.' It is true, in the present case, the plaintiff did not claim to be proprietor, and the question whether the plaintiff or the defendant was the porprietor did not arise; but Section 177 provides for an appeal to the District Judge when any question of proprietary title has beenand is in issue. The plaintiff denied that the defendant was entitled to possession as proprietor, though he did not deny that he was a co-sharer. The importance of the case is to have a settled practice. We think that the language of the clause is wide enough to include a case like the present where one party claims actual possession as proprietor and the other side disputes such claim and that under the circumstances an appeal lay to the District Judge under Section 177, Clause (e), of the Tenancy Act We accordingly direct that the memorandum of appeal be returned by the Commissioner and the same be received by the District Judge, who shall proceed to hear and determine the same according to law.
3. This is our answer to the reference. The costs of this reference will abide the result.