Henry Richards, Kt., C.J. and Pramada Charan Banerji, J.
1. This appeal arises under the following circumstances. A zamindar took proceedings before an Assistant Collector of the first class to resume certain land under Section 154 of the Tenancy Act. The defendant pleaded that the land was not resumable under that section, and also that he had held the land rent-free for more than fifty years and by two successors. The Assistant Collector held that the land was resumable under Section 154 and passed a decree for ejectment. The defendant appealed to the Commissioner. By his memorandum of appeal he contended first that the suit was barred by limitation; secondly, that the land was not held at the pleasure of the grantor; thirdly, that the land was a charitable grant and therefore not resumable; fourthly, that the court should have proceeded under Section 158, The Commissioner dismissed the appeal and the defendant filed an application in revision before the Board of Revenue, who held that the land was not resumable and remitted the case back to the court of first instance to deal with the other issues. The matter coming again before the Assistant Collector, he held that Section 158 applied and declared the defendant should be deemed to be a proprietor and proceeded to fix the revenue. The plaintiff zamindar appealed to the District Judge who declared that the appeal to the Commissioner, the application for revision to the Board of Revenue and the second hearing by the Assistant Collector were all null and Void, and further proceeded to declare that the original decision of the first court had become final. It is not quite easy to see how the learned District Judge could take it upon himself to restore any decree--he might no doubt have, allowed the appeal and set aside the decree of the Assistant Collector on the ground that he had no jurisdiction to pass the decree; but it is difficult to see how he could go any further. It appears that no exception was taken by the zamindar to the original appeal to the Commissioner on the ground that he had no jurisdiction to hear the appeal, nor does it appear that any objection was taken to the hearing of the application for revision by the Board of Revenue, nor was any objection taken apparently to the re-hearing of the case by the Assistant Collector as the result of the order of the Board of Revenue. The view taken by the learned District Judge was that the appeal against the original decision of the Assistant Collector did not lie to the Commissioner and that consequently all the proceedings were absolutely null and void, except the original decision of the Assistant Collector, and, there not having been any valid appeal against that decree, it had become final. Under the Tenancy Act appeals lie from the decisions of the court of the Assistant Collector to the Commissioner when proceedings are taken under Section 154 and therefore prima facie the appeal to the Commissioner in the present case was correct. Section 177, however, provides for appeals in certain cases to the District Judge, and, amongst others, in all suits in which a 'question of proprietary title has been in issue in the court of first instance, and is a matter in issue in the appeal.' It is contended on behalf of the respondent to the appeal before us that because in the fourth ground in the memorandum of appeal to the Commissioner the then appellant stated that proceedings should have been taken by the Assistant Collector under Section 158 of the Tenancy Act, a question of proprietary title was a matter in issue in the appeal, and therefore the appeal should not have been made to the Commissioner. Assuming (but without deciding) that ground No. 4 did raise a question of proprietary title, and bearing in mind that as a matter of fact no decision was come to on this alleged question of proprietary title, and bearing in mind also that it does not appear that evidence was given or arguments addressed upon this question before the Commissioner, it is a little difficult to say that the question was 'in issue' before the Commissioner, that is to say, was 'in issue in the appeal.' In the course of the argument we asked whether it could be said that the question of proprietary title was 'in issue in appeal,' if after the appeal had been filed it had been struck out or abandoned, or if the Commissioner had declined to frame any issue on this point and it had practically to be admitted that in such a case it could not be said that the question of proprietary title was 'in issue in the appeal.' We think under the circumstances of this case that the question of proprietary title was not 'in issue in the appeal' before the Commissioner and that accordingly the decision of the Board of Revenue cannot be treated as null and void. This being so, the Assistant Collector was right in determining the matter upon remand and the learned Judge was wrong in not deciding the appeal upon the merits. We accordingly allow the appeal, set aside the decree of the District Judge and remand the case to him with directions to re-admit the appeal upon its original number on the file and proceed to hear and determine the same having regard to what we have said above. Costs here and hitherto will be costs in the cause.