1. It is unfortunate that there is nobody here to argue this question on behalf of the respondent or to support the view of the learned Commissioner. We must, therefore, deal with the case without that assistance.
2. These two cases (I will adopt the enumeration of the original suits, namely Nos. 543 and 544 in the Revenue Court of Meerut) have been referred to the High Court under Section 195, Sub-section (1), of the Tenancy Act of 1901 by the learned Commissioner. In form the matter comes before us as one of reference. In substance there are two distinct cases, and although the question which arises in each case is precisely the same, it is desirable to keep them distinct for the purpose of this judgment. I, therefore, propose to deal with suit No. 544 and the decision in this case will govern suit No. 543. Suit No. 544 was brought by Miss Isabella Jackson against one Sarjit, the plaintiff claiming to be the landlord and also lambardar of certain property specified in the suit, twenty plots of which were in khewat No. 1, and one plot, the identification of which is important, namely No. 2113, in khewat No. 2. The plaint merely alleged that the plaintiff was the landlord and the lambardar and that the defendant was the tenant, and asserted facts entitling the plaintiff to eject the defendant. So far it was a mere ejectment suit between a landlord and tenant, which was properly cognizable by the Revenue Court. The written statement, however, alleged totally different issues with respect to the two classes of property to which I have already referred. It is true that the opening paragraph set up a defence to the whole action, but paragraph 3 alleged that with regard to No. 2113 the defendant was a proprietor, and in paragraph 4 it set up a defence as a tenant and not as a proprietor which, if established in fact, would have been an answer to the claim in ejectment, but which was clearly distinct from the plea in paragraph 3 raised in regard to No. 2113, and raised an entirely different question of fact with regard to a totally distinct portion of the subject-matter for which the plaintiff sued. The result of that was to cut up the controversy, which the plaintiff had amalgamated, into two separate and distinct suits and inasmuch as the decree which was ultimately passed by the Assistant Commissioner on these pleadings on the 29th of October 1915 not only dismissed the whole action but also went out of its way to make a declaration in favour of the defendant upon the issue raised by him in paragraph 3, I think it must be taken that there were in substance two decrees, or at any rate two distinct parts of the decree dealing with two distinct subject-matters. Now it is obvious that if the plaintiff desired seriously to challenge the decision against her upon the question of proprietary title, it was necessary for her to raise that question formally in some way or another in the nature of an appeal, If she had appealed to the Commissioner merely upon that part of the decree which dismissed the suit as a whole and had not raised the question which had been decided with reference to No. 2113, even although she may have succeeded in reversing the order of the Assistant Commissioner on the hearing of the appeal, that portion of the decree declaring the defendant to be the proprietor of No. 2113 would have still stood. The course which she took was this. On the 8th of December 1915 she appealed to the District Judge against that part of the decree which had been passed against her on the question of the proprietary title of No. 2113. That appeal was numbered 651 in the Court of the District Judge, was heard by the District Judge and decided by him in favour of the appellant. Care was taken in the notice of appeal to make it clear that the appeal was brought only with regard to that portion of the decree which dealt with the question of proprietary title and it was said that a further appeal would be brought with regard to the other portions of the decree to the Commissioner's Court. I would merely point out that the plaintiff was by no means bound to carry out that intention, and bring an appeal from the rest of the decree if she had chosen to be satisfied with the decision of that portion. She might have contented herself by appealing from the order against her on the question of proprietary title. In that case it could not be denied that the proper Court to go to by way of appeal would be the District Judge. Under Section 177 it is provided that the appeal shall lie to the District Judge in all suits in which a question of proprietary title has been in issue, but on the 13th of January 1916 by notice of appeal to the Commissioner's Court, which appeal subsequently became known as No. 63, she carried out her original intention of appealing against the other part of the decree. By paragraph 2 of her notice of appeal she made it quite clear that her appeal was confined to the decision against her with reference to the tenancy of the plots other than No. 2113. The Commissioner denied himself jurisdiction to hear that appeal and referred the matter to this Court upon the ground that it was impossible to bifurcate an appeal, and he gave as his reason that it would be obviously undesirable if parties dissatisfied with the decision against them upon a particular subject-matter appealed to Court A on some ground or another, and to Court B on some other ground. But that is not this case. The sum and substance of this case is that the plaintiff had two decisions against her neither of which she liked. Each of them related to a totally different plot of land and each of them raised absolutely distinct and inconsistent questions of fact and law. It seems to me that where that occurs it is just as though the suits were two distinct suits, although for the purpose of convenience and economy the procedure of the Code permits them to be tried and decided as one. In my opinion we are bound by, or if not bound by it, speaking for myself I am disposed to follow, especially as I was a party to it, a decision of this Court which is reported as Gajraj Mati Tewarin v. Shami Nath 36 Ind. Cas. 307 : 14 A. L.J. 853. The decision there was that where a decree has been passed against several defendants including some absent ones, ex parte and there has been ah appeal by those who were present at the original hearing of the suit, so that as regards these defendants the decree has become merged in a subsequent decree of an Appellate Court, nonetheless the absent defendants against whom a decree had been passed ex parte, if they wished to get the decree set aside, must apply in the original Court which determined the suit against them. The effect of that is, of course, that as between separate parties to the same suit a decree is severable and there is a long and exhaustive judgment of Mr. Justice Sundar Lal on the subject referring to all the principal authorities and pointing out the inconvenience of holding otherwise. To my mind that case determined the question of principle, namely whether a decree is severable. We think it is and we think that this decree ought to be treated as a decree on two separate subject-matters, an appeal as to the one which raised the question of proprietary title lying to the Civil Court, the appeal as to the other subject-matter which raised no such question, lying to the Commissioner. It is only necessary to add that it is important to bear in mind that this decision relates only to the special facts and procedure in this particular case. The result is that the order of the Court will be to send the case back to the learned Commissioner with directions to entertain the appeal in appeal No. 63 and hear it according to law. The same order will be passed with regard to appeal No. 64, which is also referred to us under the name of suit No. 543.
3. The procedure adopted by the appellant is open to no objection. With regard to the plots in respect of which the other side asserted a proprietary title, she was obliged to contest the decision in the Court of the District Judge, who alone could determine the question of proprietary title, but with regard to the remaining plots where no such assertion was made, the District Judge was not invested with the power to determine the points raised in the suit. There is nothing in the language of the Act which prohibits an appeal as to one portion of the subject-matter being decided by One Court and an appeal as to the other portion being decided by another Court. I agree to the order proposed.