1. I think this application must fail. The principal ground taken is that the lower Court, namely, the additional Judge of Agra had no jurisdiction to entertain an appeal. That appeal was an appeal against the appellate order of the Collector and it was filed in the District Judge's Court apparently on the 10th February 1926. It was an appeal under the Agra Tenancy Act (U.P. Act II of 1901) and admittedly was a competent appeal under Section 180 of that Act provided that there had been in issue in the first appellate Court a question of proprietary title which had also become a matter of issue in the appeal. The Judge was of opinion that the appeal was competent and that there had been an issue raising a question of proprietary title in the first appellate Court, namely, the Court of the Collector. I think the Judge was right. The contest arose in this way. One Kallan who owned certain property made a mortgage of it to Girwar and afterwards became the tenant of the mortgagee. Kallan then made a second mortgage in favour of Radha Gobind, Radha Gobind, the second mortgagee, brought a suit to redeem the first mortgage and got a final decree on the 23rd of February 1922. He got formal possession on the 29th April 1922, and got mutation effected on 1st September 1923. Girwar, the first mortgagee, brought the suit out of which these proceedings have arisen against Kallan for arrears of rent for 1330 Fasli, i.e., from 1st June 1922 to 30th June 1923. He apparently considered himself entitled to sue for arrears of rent for that period on the ground that the mutation order in favour of the second mortgagee had not been made until 1st September 1923. Kallan disputed the right of Girwar to recover rent from him and this matter was in appeal before the Collector. Kallan's contention was that he was not liable to pay rent to Girwar after Girwar had been made to suffer redemption. The Collector, however, upheld the decree of the first Court which was in favour of Girwar. When the case came up before the District Judge in second appeal he reversed the decree of the Collector holding that after redemption the second mortgagee was the right person to recover the rent And that Girwar could not recover. He also found that Radha Gobind's title to recover rent accrued from the date of formal delivery of possession of the land in suit.
2. On these facts I agree with the Court below that there was a question of proprietary title raised. The question as to whether Girwar or Radha Gobind was entitled to recover the rent from the defendant was in my opinion a question of proprietary title. The jurisdiction of the District Judge was, as I have said, governed by Section 180 of the U.P. Tenancy Act, (Act 2 of 1901,) Mr. Panna Lal, in the second ground of his application, refers to the new Tenancy Act 3 of 1926, which came into force on the 7th September 1926, and he lays stress on the provisions of Section 243 of that Act, his, contention being that there is no question of proprietary right raised in cases like this unless the parties to the suit are each claiming proprietary right. Whatever may be the proper interpretation of Section 243 all I need say is that this Act 3 of 1926, was not in force when the appeal was filed before the District Judge and consequently, having regard to the provisions of the General Clauses Act, U.P. Act 1 of 1904, Section 6, the District Judge was bound to decide the case under the terms of the old Act and not under the terms of the new Act. It was a fact that his decision was given after the new Act came into force, but that does not touch the matter. The case is clearly covered by Section 6(e) of the U.P. General Clauses Act of 1904. I thus find that there is no merit in this application which I dismiss with costs including fees on the higher scale.