1. This is a reference made by the learned Civil Judge of Bulandshahr under Section 289 (2), U.P. Tenancy Act XVIl  of 1939.
2. The facts giving rise to the reference are, shortly stated, as follows: Khillan and Jhamman, defendants in the suit which has given rise to the reference mortgaged their share in certain Khewats usufructuarily to one Ganga Dayal on 5th March 1928 and were declared exproprietary tenants of the sir plots which are the subject. matter of the present suit. Rent was assessed in due course. It was not paid and consequently Khillan and Jhamman were ejected under Section 79 of the old Tenancy Act. Ganga Dayal, the mortgagee obtained delivery of possession on 22nd January 1932. Ganga Dayal appears to have been recorded as in possession of the plots as a khudkasht-holder from 1341 Fasli to 1345 Fasli. in 1936 Khillan and Jhamman made an application under the U.P. Encumbered Estates Act and showed this property as their property. Ganga Dayal, the mortgagee, proved his mortgage in proceedings under the Encumbered Estates Act and, in due course, a decree under Section 14 of that Act was passed in his favour. The result was that the mortgage debt was wiped off and Khillan and Jhamman were put in possession of the mortgaged property under Section 33, Encumbered Estates Act by the Collector. This was on 15th May 1941. Khillan and Jhamman along with one Ram Chander, defendant 3, entered into actual possession of the plots in dispute in the beginning of 1349 Fasli. Meanwhile Nand Kishore, brother of Ganga Dayal, mortgagee, purchased shares in the khewats from other cosharers, namely Jagannath and Bhagwant and thus became a proprietor in the khewats. Nand Kishore thereafter brought the present suit against Khillan, Jhamman and Ram Chander for possession in the revenue Courts making his claim, alternatively, under Sections 180 and 183, U.P. Tenancy Act. He claimed in the first instance that he was a proprietor in the khewats and was, in fact, in possession of the plots in suit as khudkasht. holder and that the defendants respondents had dispossessed him wrongfully. In the alternative, he alleged that he held as a tenant from his brother, Ganga Dayal, the mortgagee and that he was entitled to possession as a tenant. Later on the 'claim based upon tenancy right was given up by him. In defence, Ram Chander filed one written statement and Khillan and Jhamman another. Khillan and Jhamman did not specifically deny the plaintiff's proprietary right to the plots in dispute although they seriously contested his right of possession of the plots as khudkasht. They stated that they were themselves the khudkasht-holders of the plots in dispute. It may be noted that the proprietary title of Khillan and Jhamman themselves was not denied by the plaintiff. He, indeed, admitted it in Para. 1 of the plaint. The position, therefore, on the pleadings was that the proprietary title of the defendants was admitted by both the parties and the only question in dispute was whether the plaintiff or the defendants were entitled to possession of the plots as their khud-kasht. The issue raised by the revenue Court upon these pleadings was:
Whether the land in suit is khudkasht of defendants 1 and 2?
In our opinion, this was a perfectly correct issue. Khillan and Jhamman, however, presented an application for the amendment of this issue. It was, in consequence, re-modelled by the revenue Court by an order, dated 26th May 1942, as follows:
Whether defendants 1 and 2 are. in proprietary possession of the land in suit?
Since the word 'proprietary' was used in this issue, the revenue Court referred it to the civil Court for decision. The Munsif amended it further and framed the following issue:
Whether defendants 1 and 2 are proprietors of the land in suit
As the proprietary title of defendants 1 and 2 was never denied by the plaintiff, he admitted it before the Munsif; the result was that the Munsif decided that issue in the affirmative and sent the record back to the revenue Court. The revenue Court then went into the question of the right of possession over the plots in suit and held that the defendants respondents were entitled to possession and dismissed the suit. The plaintiff then went up in appeal to the learned Commissioner. The additional Commissioner before whom the case came up for hearing held that since a question of proprietary title was raised and decided by the civil Court, the appeal should have been filed in the Court of the District Judge. On this view, he returned the memorandum of appeal for presentation to the proper Court. The appeal was, thereupon, taken to the learned District Judge who apparently transferred it to the learned Civil Judge. The learned Civil Judge has taken the view that as no question of proprietary title really arose in the case upon pleadings of the parties, that was not a case in which it could be said that a question of proprietary title was decided by the civil Court. He pointed out that the proprietary title of defendants 1 and 2 was admitted by the plaintiff in the plaint itself and that it was further admitted before the Munsif when the issue was before him for trial. He has, therefore, referred the matter to this Court under Section 289 (2), U.P. Tenancy Act, 1939.
3. Mr. Anang Pal Gupta, on behalf of the respondents, has taken a preliminary objection to the hearing of this reference. While this reference was pending in this Court Nand Kishore plaintiff died. According to Mr. Gupta, no application for substitution of his heirs was made either in this Court or in the Court below within a period of ninety days. It is contended on behalf of the other side that an application was, in fact, made within the period of limitation in the lower Court. We are of opinion that we are not called upon, in this reference, to deal with this matter. We are required simply to answer the question of law that has been referred to this Court. If no application for substitution of the Theirs of the plaintiff has been made within the period allowed by law, that would be a question which would be determined by the lower Court when the case goes up before him for decision. We, therefore, overrule the preliminary objection, but make it clear that the question will be open to be decided by the lower Court.
3a. Before the passing of the present U.P. Tenancy Act the law on the subject was contained in Section 271, Agra Tenancy Act, 1926. Subsection (4) of that section provides as follows:
Every 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 under Sub-section (2) of this section shall__
(a) if the question of proprietary right is in issue also in appeal, be appealable to the civil Court which has jurisdiction to hear appeals from the Court to which the issue of proprietary right has been referred.
(b) If the question of proprietary right is not in issue in appeal, be appealable to the revenue Court.
4. It will be noticed that in order that an appeal should lie to the civil Court, two conditions had to be satisfied. Firstly, there must have been an issue involving a question of proprietary right which was decided by a civil Court and secondly, the question of proprietary right was in issue in the appeal also. Section 2a6 (i), U.P. Tenancy Act, 1939, however, which has superseded the Agra Tenancy Act, 1926, provides as under:
An appeal from 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 under Sub-section (2) shall lie to the civil Court which having regard to the valuation of the suit, has jurisdiction to hear appeals from the Court to which the issue of proprietary title has been referred.
It is clear that this sub-section does not require that the question of proprietary right should be in issue in the appeal also. The result, therefore, is that under the present U.P. Tenancy Act, an appeal will lie to the District Judge whenever an issue involving a question of proprietary right has been decided by the civil Court. The question, therefore, is whether in the present case an issue of proprietary right has been decided by the civil Court. Now, it is true that if we look at the pleadings no question of proprietary right was raised. Indeed, it may be said that the revenue Court erred in sending the issue which it framed to the civil Court for decision. However that may be, an issue was, in fact, sent to that Court. It was remodelled there under the provisions of Sub-section (2) of Section 286, U.P. Tenancy Act. After remodelling, the issue was a plain and simple issue whether defendants l and 2 are proprietors of the land in suit. Rightly or wrongly there was a decision. It cannot be denied that the issue as ultimately framed raised a question of proprietary title. That it was decided cannot also admit of any doubt. The Munsif answered the issue in the affirmative. If there is an issue of proprietary title and it has been; decided by the civil Court, the case falls within the language of Sub-section (4) of Section 286. It may be that the issue was unnecessary. It may also be that the issue was wrongly decided. These questions, however, are beside the point. The simple] question to be determined is whether, in fact there was an issue of proprietary title decided by the civil Court. In this case there can be no doubt on that question. We think that the intention of the law is that a litigant who has to file an appeal should be able to find out from the judgment whether there was an issue of proprietary title actually decided by the civil Court. It should not be necessary for him to decide for himself before he files an appeal whether the issue arose on the pleadings or whether it should have been sent to the civil Court for decision. In our opinion, the memorandum of appeal was rightly returned by the learned Additional Commissioner for presentation to the proper Court and was rightly taken to the learned District Judge. The learned Civil Judge has, in support of his view, referred to a ruling of this Court: Ram Chandra Singh v. Misri Lal, reported in : AIR1937All790 . That case has no application to the facts of the present case. In that case, the question was whether the question of proprietary title was in issue in the appeal. It was held that no , question of proprietary title was raised in appeal and consequently no appeal lay to the District Judge. That was a decision under Section 271, Agra Tenancy Act. As we have pointed out above, it is not now necessary that the issue of proprietary title should also have been raised in the appeal before it can be said that the appeal is entertainable by the District Judge.
5. The answer to the reference made by the learned Civil Judge, therefore, is that the memorandum of appeal was rightly returned by the learned Additional Commissioner for presentation to the civil Court and that the appeal was cognisable by the civil Court. It should now be heard by the learned Civil Judge.