1. This is a reference by the Commissioner of Khansi under Section 267, Agra Tenancy Act, (3 of 1926).
2. It appears that the plaintiff Sukhdcoji sued in the Court of the Assistant Collector under Section 44 of the Act for the ejectment of the defendant, treating him as a trespasser. The defendant resisted the claim on the ground that he was himself the proprietor and the plot was his khudkasht. An issue was framed as regards the alleged proprietary rights of the defendant and it was referred by the Assistant Collector to the Munsif for determination. The Munsif came to the conclusion that the defendant was not the proprietor and sent his finding to the Revenue Court. The Revenue Court, of course, accepted that finding but dismissed the suit on a different ground namely, that the plaintiff being only one of the cosharcrs was not entitled to maintain a suit for ejectment alone. An appeal was filed in the Court of the Commissioner by the plaintiff. Naturally as the finding as regards the defendant's proprietorship was in favour of the plaintiff, he did not raise any question of proprietorship in his grounds of appeal. The defendant however filed an application styling it as a cross-objection in which he attempted to support the decree of the Assistant Collector by attacking the finding that he was not the proprietor. Before the learned Commissioner the question of jurisdiction was raised. It is clear that where there is a decree of a Revenue Court passed in a suit in which an issue involving a question of proprietary right has been decided by a Civil Court and if the question of proprietary right is in issue also in appeal a decree is appealable to a civil Court under Section 271(4) of the Act and also under Section 242(3). The learned Commissioner came to the conclusion that a question of proprietary right has been raised in the appeal before its hearing and in consequence the appeal could be decided only by the civil Court under the first mentioned section. He accordingly held:
My jurisdiction is ousted as the result of this1 cross-objection, and the appeal must now go to-the civil Court.
3. The learned Commissioner however felt some doubt as to the way in which the appeal is to be sent to the civil Court. At the time when it was filed apparently the Commissioner had. jurisdiction and in his opinion that jurisdiction was ousted as the result of the cross-objection. The learned Commissioner therefore felt doubt as to whether he should hand over the memorandum of appeal to the appellant for presentation to the proper Court or whether he himself should send the appeal direct to the civil Court. He has said:
I am in doubt as to the manner in which I should direct that this appeal should now be sent to the civil Court for deer ion.
4. It is this point which he has referred to the High Court. We do not think that he came to the conclusion definitely that he must direct the appellant to file the appeal in the Court of the District Judge. It seems that he actually had a doubt whether he should direct the appellant to do so. The reference therefore is proper.
5. There is no doubt that the language of Section 271 is not quite happy and it seems very awkward that an appellant who may not anticipate that the respondent would raise a question of proprietary title by way of cross-objection should be prevented from filing an appeal in the Court of the Commissioner when he himself does not raise any question of proprietary title at the time of the filing of the appeal and that although the Commissioner might have jurisdiction when the appeal is filed he would cease to have jurisdiction as soon as the cross-objection is filed. But in this case respondent merely wanted to support the decree of the trial Court by attacking a finding which was against him. We think that when the learned Commissioner came to the conclusion that his jurisdiction was ousted and that the appeal must go to the civil Court the only way open to him was to return the memorandum of appeal to the appellant. In the absence of any specific provision permitting the sending of an appeal direct to the civil Court the provisions of Order 7, Rule 10 read with Section 107(2), Civil P.C., would be applicable. The question of ordering costs at the time of the return of the appeal would be a matter of discretion for the Commissioner. We order that the costs incurred by the defendants in this reference should be paid by the plaintiff. Let the record be returned