1. Muneshar, the respondent in this case, instituted a claim for determination of the nature of his tenancy under Section 95 of Act II of 1901 in respect of certain plots in Mouza Barwa in the Court of the Assistance Collector First Class, Gorakhpur, against the appellant, Ram Bahadur Singh, the zemindar of the land. The defendant contested the claim, and the Assistant Collector dismissed the claim of the plaintiff on 1st of August 1922. Muneshar filed an appeal in the Court of the District Judge of Gorakhpur describing it as an appeal under Section 177, Clause (7) of the Tenancy Act. The learned Judge who heard the appeal decreed it on the 4th of July 1923. Ram Bahadur Singh has come here in second appeal and has raised various pleas one of them being that no appeal lay to the District Judge from the decision of the Assistant Collector.
2. A suit under Section 95 falls in group (c) of the Fourth Schedule of the Tenancy Act. An appeal from the decree of an Assistant Collector of the First Class can only lie if that order comes within the purview of Section 177, but suits under group (c)of the Fourth Schedule cannot be subject of that appeal under that section. The appeal to the District Judge was therefore incompetent. Under Section 179 an appeal lies to the Commissioner from the decree of an Assistant Collector, First Class, in any of the suits included in group (c). I am therefore of opinion that the appeal should have been filed in the Court of the Commissioner.
3. I allow the appeal, set aside the decree of the District Judge and direct that the memorandum of appeal presented to the District Judge by Muneshar be returned to him for presentation to the proper Court.
4. I make no order as to costs of this appeal.