Iqbal Ahmad, J.
1. This is a plaintiff's appeal and arises out of a suit for ejectment filed in the revenue Court under Section 58(a), Agra Tenancy Act, on the allegation that the defendant was holding the land in dispute as a tenant from year to year, The defence to the suit was that the relation of landholder and tenant did not subsist between the parties, and that the defendant was in possession of the plots in dispute as a mortgagee.
2. The learned Assistant Collector held that the relation of landholder and tenant did not exist between the parties, and that the land in dispute was held by the defendant as his khudkasht, and on these findings dismissed the plaintiff 's suit on the 15th June 1922.
3. The plaintiff filed an appeal against the decree of the Assistant Collector in the Court of the Commissioner on the 12th August 1922. The learned Commissioner held that, as a question of proprietary title was in issue in the Court of first instance and was in issue in the appeal, the appeal should have been filed in the Court of the District Judge, and accordingly the memorandum of appeal was returned to the plaintiff-appellant, on the 5th November 1923, for presentation to the proper Court. The memorandum of appeal was then presented in the Court of the District Judge, on the 6th November 1923. It was accompanied by an application for extension of time under Section 5 of the Limitation Act, and the application was supported by an affidavit, in which it was stated that the appeal had been filed in the Court of the Commissioner because of the advice given to the plaintiff-appellant by Babu Lal Bahadur, mukhtar. The learned District Judge has rejected the application for extension of time, and has dismissed the appeal as time barred.
4. In appeal it is argued, by the learned Counsel for the appellant, that an honest mistake that is committed by a litigant because of an incorrect advice given to him by his lawyer, constitutes a sufficient cause for extending the period of limitation for filing an appeal and for this reliance is placed on the Full Bench decision in the case of Shib Dayal v. Jagannath Prasad A.I.R. 1922 All. 490. This proposition of law cannot, and has not been challenged by the learned Counsel for the respondent. It only remains to be seen, whether in the present case the plaintiff-appellant filed the appeal in the Court of the Commissioner because of an incorrect advice given to him by his lawyer. A reference to the decree of the learned Assistant Collector shows that Lal Bahadur, mukhtar, was the mukhtar of the plaintiff in the Court of the Assistant Collector. Therefore, there is no occasion for surprise if the plaintiff enquired from him in which Court the appeal should be filed, and acted upon his advice. It was pointed out by the learned Counsel for the respondent that the name of Babu Lal Bahadur appears in the affidavit to have been inserted after the same had been written. It is undoubtedly so, but the name was there before the affidavit was verified. It is not said that the name of Babu Lal Bahadur was inserted in the affidavit after the name had been sworn to by Munna Lal, the pairokar of the plaintiff. The name of Babu Lal Bahadur appears to have been written in the affidavit simply with a view to make the allegations in the affidavit more definite.
5. The learned District Judge has refused to extend the time under Section 5, Limitation Act, because, in his opinion, the matter was so simple that it should have been apparent to every one that the appeal against the decree of the Assistant Collector lay to the District Judge and not to the Commissioner. He has not refused to believe the statement contained in the affidavit that wrong advice was given by Babu Lal Bahadur, mukhtar. The question as to whether the appeal lies in the Court of the District Judge or in the Court of the Commissioner, against the decree of an Assistant Collector of the First Class, in a suit for ejectment in which the defence raised is that the defendant is in possession as a mortgagee, is not so simple as the learned Judge seems to have thought. A reference to the case of Kalyan Mal v. Samad  35 All. 157 shows that there have been in the past differences of opinion between a Commissioner and a District Judge on that point. Moreover, the point that the learned District Judge had to decide was not, whether it was possible for any man to entertain doubt as to the proper forum for filing the appeal, but whether or not in this particular case the appellant was misled by the incorrect advice of a counsel to file an appeal in the Court of the Commissioner. This question the learned District Judge has not touched. The affidavit filed bY the pairokar of the appellant remains uncontradicted, and I see no reason why the allegation contained in the same should not be believed. There was no earthly 'reason for the plaintiff not to file an appeal in the Court of the District Judge if he knew and was told that the appeal lay to that Court.
6. It is true that the appeal in the Court of the Commissioner was filed much beyond the period of. 30 days, the period allowed for filing appeals in the Court of the District Judge but the delay in filing the appeal in the Court of the learned Commissioner was again due to the incorrect advice of Babu Lal Bahadur, mukhtar. In the case of Maqbul Ahmad v. Murla  14 A.L.J. 212 under similar circumstances the benefit of Section 5, Limitation Act, was extended to the appellant by this Court.
7. For the reasons given above, I allow the appeal, set aside the decree of the learned District Judge and remand the case to that Court with directions to readmit the appeal to its original number and to proceed to hear and dispose of the same according to law.
8. As the proceedings in the Court of the District Judge were occasioned through no fault of the respondent, I direct the appellant to pay the defendant-respondent the costs of that Court. The parties will bear their own costs in this Court.