1. This is a second appeal arising out of certain proceedings in a partition case under the Land Revenue Act. An application for partition was presented on August 21, 1903, by certain recorded co-sharers who are not parties to the appeal now before us; and the Assistant Collector issued a notice to the remaining co-sharers in the mahal fixing November 4th, 1903, for the presentation of objections. On November 1, 1903, certain recorded co-sharers in the same mahal, Jagdish Prashad and others, who are the appellants now before us and may be hereafter spoken of simply as the appellants', presented what was beyond all question an application under Clause (2) of Section 110 of the Land Revenue Act asking that their own recorded shares might be formed into a separate mahal. They admitted in the application itself that certain other persons, namely Chimman Lal and others, the respondents now before us (hereafter to be referred to simply as the respondents'), were recorded as mortgagees-in-possession in respect of the shares to which their application related; but they pleaded that this record was erroneous, the names of the respondents being fictitiously entered' and they having in reality no concern with the same': this is essentially a plea that the application should not be summarily rejected as barred by the proviso to Section 107 of the Land Revenue Act, the plea taken being that the recorded mortgagees had no valid title as such and were not actually in possession. The Assistant Collector ordered a notice to issue to the respondents giving them till January 8th, 1907, to present any objections they might have to offer to the granting of this application. On January 7, 1907, the respondents filed their objection. They did not plead that they were in fact mortgagees and in possession as such, they said they, were in fact the proprietors of the shares in respect of which the appellants had applied for partition. There has been a good deal of discussion introduced into the case by the fact that both the Courts below have persistently treated the appellants application of November 1, 1903 as an objection to the partition, and as one which raised a question of proprietary title under Section 111 of the Land Revenue Act. We are prepared, however, to hold that the Assistant Collector had before him in the respondents' objection of January 7, 1907, an objection to partition which did raise such a question and which he was competent to deal with under that section. The respondents are themselves recorded co-sharers in the mahal under partition in respect of certain other shares. It is true their objection was not presented on or before November 4, 1906; but the Assistant Collector had himself issued a notice to them inviting them to present any objection which they might have to make within a certain further period The issue of a fresh notice in respect of an application filed under Section 110(2) of the Land Revenue Act is not expressly provided for in the Act itself, and the absence of such provision is perhaps to be regretted; but it can scarcely be contended that an Assistant Collector is not competent to issue a fresh notice, or to extend the period within which objections may be filed, if he sees fit to do so. Moreover, there is authority of this Court Tulsi Prasad v. Matru Mal 18 A. 210, for the proposition that if an Assistant Collector does in fact entertain an objection filed by a recorded co-sharer after the period fixed for the presentation of such objections has expired, this will not of itself render proceedings taken by him under Section 111 of the Land Revenue Act void or without jurisdiction.
2. The Assistant Collector proceeded himself to try the question of proprietary title as between the appellants and the respondents. He found the appellants to be the proprietors of the greater portion of the shares specified in their application of November 1, 1903, and the respondents to be the proprietors of a small portion of the said shares. He passed a decree to this effect. The appellants appealed to the District Judge against so much of this order as dismissed a part of their claim, and cross-objections were filed by the respondents against the rest of the Assistant Collector's decree. It would seem that in the District Judge's Court, the plain issue of proprietary title became overlaid by arguments based on the alleged rights of the respondents as mortgagees. Certain issues were remitted for trial, and finally the District Judge disposed of the appeal before him by an order and decree, the precise purport and effect of which it is not very easy to estimate. The decree itself in terms dismisses the appeal and confirms the order and decree of the Assistant Collector; but it adds that the respondents' objection under Section 561 of the Code of Civil Procedure has been disposed of under the judgment.' This has been understood by the parties as virtually embodying in the decree certain findings recorded in the judgment and as having the effect of ejecting the appellants' application for partition. The District Judge as a matter of fact has not decided at all the simple issue on which the parties appealed to his Court, namely--'Are Jagdish Prashad and the other applicants the proprietors of the whole or of any part of the shares specified in the application of November 1, 1906?' He comes to the conclusion that the respondents hold a mortgage charge of some unspecified amount over the shares recorded in the names of the appellants and that until the appellants satisfy this charge, they are not entitled to object to the partition proceedings. 'This finding as it stands is an impossible one. The question of the existence of a mortgage charge was not before the District Judge for decision; the appellants had not objected to the partition but had applied for a partition of their own recorded shares, and the existence of a mortgage charge on the said shares could not operate as a bar to the success of such an application. In another part of its judgment, the lower appellate Court has discussed the question of actual possessor as between the appellants and the respondents in respect of the shares in question but the only recorded finding is that the respondents have held mortgage possession within limitation. In another place the District Judge finds that the appellants 'purchased the equity of redemption;' but it is by no means clear whether this finding refers to the whole of the shares in respect of which the application of November 1, 1906, was made, or to some portion of the same. In effect the judgment of the lower appellate Court taken apart from its decree amounts to a finding that it is not necessary to decide any of the other questions discussed before it, because the appellants' case must fail simply on the ground that the respondents hold a mortgage charge which has not been satisfied. This finding we are unable to accept, and as both parties seem to have adopted the view that it is to be understood as embodied in the decree of the lower appellate Court, we must in any case either modify that decree or set it aside altogether. We find it impossible, as the case stands, simply to set aside the decree of the lower appellate Court and restore that of the Court of first instance. The fact is that the learned District Judge has not tried the issue raised by the appeal and cross-objections in his Court at all. He has nowhere even discussed the particular point raised by the appellants, namely, that they are proprietors of the whole of the shares recorded in their names and specified in their application of November 1, 1906, and not merely of the portion of the same decree in their favour by the Assistant Collector. Even on the respondents' cross-objection he can scarcely be said to have recorded a clear finding on the question of proprietary title. He has really disposed of the appeal before him on a preliminary point, and his decision on this point we are unable to affirm. The proper order for us to pass is, therefore, one remanding the case to the lower appellate Court for disposal on the pleas actually taken by the parties. In so doing, however, we think it necessary to deal ourselves with one point which has been argued before us at length. We have already pointed out that the respondents, in their petition of objection before the Assistant Collector, said nothing about their mortgagee right, they simply claimed to be the proprietors of the shares to which the appellants' application for partition referred. In their cross-objection before the District Judge the respondents for the first time definitely raised the plea that, even if the question of proprietary title were decided against them, they would still, be entitled to object to the partition as usufructuary mortgagees in possession of the shares in question. They in effect pleaded the proviso to Section 107 of the Land Revenue Act, and no doubt this proviso was in the mind of the learned District Judge when he passed the order he did. The question is whether it lay with the District Judge to decide or to give effect to the objection taken before him by the respondents with reference to their mortgagee rights. If the respondents had never claimed proprietary rights in the Assistant Collector's Court in respect of the shares in question, but had simply replied that the entries in the village papers were, quite correct, that they were in possession as usufructuary mortgagees and that they were entitled as such to object to the partition because of the proviso to Section 107 of the Land Revenue Act, would the decision of the Assistant-Collector on this point have been appealable to the District Judge as a decision falling under Section 111 of the said Act? We conceive not. The Assistant-Collector would not have determined any question of 'proprietary title' in the sense in which the words are used in the Land Revenue Act. He would hare had to decide first of all whether he could go behind the entries in the village records at all, and then whether the respondents Objectors were in fact in possession of the shares sought to be partitioned or of any portion of the same; His decision would have been appealable to the higher revenue authorities or the mortgagees might subsequently have brought a suit in a Civil Court for recovery of mortgage-possession on the allegation that they had been dispossessed in consequence of the partition proceedings. It seems clear to us that the question of the existence or otherwise of a mortgage charge upon particular property is not one which legislature intended to be determined in the course of partition proceedings. The question whether a person claiming to be an usufructuary mortgagee is or is not actually in possession, is one, which an Assistant Collector conducting a partition may have to determine because of the proviso to Section 107 of the Land Revenue Act; though we express no opinion as to whether the intention of that Act was to allow a 'recorded co-sharer' to apply for partition in respect of a share entered in the village papers as in the possession of usufructuary mortgagees without first getting the names of the said mortgagees removed from the record. All we have to decide is whether a finding by an Assistant Collector that a person claiming to be usufructuary mortgagee of a particular share either is or is not in possession of the same, is One which determines a question of 'proprietary title' within the meaning of Section 111 of the Land Revenue Act, and is appealable to the District Judge as such. We are of opinion that it is not.
3. With these remarks, we set aside the order and decree of the lower appellate Court, and remand the case to the said Court under the provisions of Order XLI, Rule 23 of the Civil Procedure Code for disposal of the questions of proprietary title raised by the appeal and cross-objections filed in that Court; Tile costs of this appeal will abide the event.
4. Costs in this Court will include fees on the higher scale.