1. One Abdul Rahman was a zemindar of plot No. 1381, which is involved in the present suit. He cultivated it as his sir land. On the 11th of May 1892, he gave a usufructuary mortgage to the predecessors in-title of the present defendants. In 1897, Abdul Rahman's proprietary rights were sold in execution of a decree and purchased by Kalian Mal. Subsequently to this, the heirs of Abdul Rahman were recorded in the patwari's papers as ex-proprietary tenants of that plot. The mortgagees under the deed of the 11th of May 1892 were recorded as mortgagees of the exproprietary tenure.
2. Kalian Mal brought a suit against the heirs of Abdul Rahman for the rent of this plot and obtained a decree and the formality of ejectment was gone through on the 27th of December 1910. As a matter of fact, the mortgagees remained in possession and were no parties whatever to the proceedings in the Revenue Court taken by Kalian Mal. The present suit out of which this application has arisen was brought against the mortgagees, the predecessors-in-title of the opposite party, ostensibly under Section 58 of the Tenancy Act. The defence of the mortgagees to the suit was that the relation of landlord and tenant did not exist between the parties and that they were the mortgagees of the proprietary rights. In other words, they clearly set up their mortgage and said that Kalian Mal was a mortgagor, having acquired the equity of redemption, and that they were the mortgagees. The first Court dismissed the suit, holding that the relationship of landlord and tenant did not exist between the parties. Kalian Mal appealed to the Commissioner who held that a question of proprietary title was involved in the case and that an appeal lay to the District; Judge. On the 24th of February 1912, he returned the appeal for presentation to the proper Court. The appeal was presented on the 26th of February 1912 to the District Judge. And affidavit was filed. The appeal was admitted and then on the 19th of June, the District Judge made the following order: 'Heard Pleader. A mortgagee of a right to occupy ex-sir land has been ejected as the ex-proprietor relinquished though without redeeming the mortgage. There is no question of proprietary title, nor was any question of jurisdiction decided in the lower Court. No appeal lies here. Returned'. It is perfectly clear that the defendants distinctly claimed a proprietary title or at least a portion of the bundle of rights) which go to make up proprietary title. An appeal did lie to the District Judge. I, therefore, admit the application, set aside the order of the District Judge and direct the Judge to re-admit the appeal on its original number and proceed to hear and decide it according to law. I make no order as to costs.