1. This application for revision calls in question the propriety of an order passed by the learned District Judge of Farrukhabad, on the 16th of February 1922.
2. The case has arisen in the following way. A suit was filed in the Court of the First Class Assistant Collector by Lalta Prasad, plaintiff, against Kharga and other defendants. This suit was framed as a suit for resumption of a muafi under Section 150, read with Section 154, of the Agra Tenancy Act (II of 1901).
3. By way of defence to the suit the defendants pleaded (1) that the land was not capable of resumption, inasmuch as it was abadi land and not agricultural land, and (2) that by reason of certain facts they had become the proprietors o the land in question. The defendants pleaded that they had held the disputed land in circumstances which gave them the right under Section 158 of the Tenancy Act to be deemed proprietors.
4. Three issues were framed by the Assistant Collector, (1) whether the land in suit was abadi land, (2) whether the land was resumable and (3) whether the land had been held rent-free by the defendants for more than two generations and for more than fifty years.
5. The learned Assistant Collector decided only issues Nos. 1 and 2. He found that the land in suit was abadi land and that it was not resumable under the provisions of Chapter X of the Tenancy Act. He came to no finding on the third issue, viz., as to whether the defendants had held the land rent-free for two generations and for more than fifty years.
6. The result was that the suit was dismissed. The plaintiff then went in appeal to the learned District Judge and the learned District Judge refused jurisdiction being of opinion that the only question which was before him was whether or not the land in suit was land under the Tenancy Act. He held that there was no question of proprietary title or jurisdiction before him. He accordingly returned the memorandum of appeal for presentation to the Commissioner.
7. The argument here is that the learned. District Judge was wrong in declining jurisdiction. In my opinion this contention must be upheld. Section 177 of the Tenancy Act describes the cases in which an appeal lies to the District Judge from the decree of an Assistant Collector of the First Class. It is declared by this section that in all suits in which (e) a question of proprietary title has been in issue in the Court of first instance and is a matter in issue in the appeal or (f) a question of jurisdiction has been decided, the appeal lies to the District Judge. It has been argued before me that this suit was one of the suits described in group C which is mentioned in Schedule IV to the Tenancy Act. That, no doubt, is true but, the words 'in all suits' in Section 177 would comprise suits of any description in whatever group they may be. It cannot be argued that, because this particular kind of suit foils in group C, the appeal does not lie to the District Judge.
8. It remains to be considered whether a question of proprietary title was raised in the Court of the Assistant Collector and was a matter in issue in the appeal.
9. I do not agree with the learned District Judge when he says that no question of proprietary title was raised. It seems to me that if in a suit for resumption the defendant sets up a plea based on Section 158 of the Tenancy Act he is raising a question of proprietary title, for, obviously, if the plea is determined in his favour he is entitled to a declaration of his proprietary right. This view is supported by the judgment reported as Sunder Singh v. Collector of Shahjahanpur 11 Ind. Cas. 514 : 33 A. 553 : 8 A.L.J. 539.
10. It is clear that the question of proprietary title was raised in the Court of first instance. I was rather inclined to doubt whether this question was also put in issue in the Court of the District Judge, but the learned Counsel for the applicant has referred me to the memorandum of appeal and on a fair construction of the grounds of appeal I think it may be said that the question of proprietary title was also raised in the memorandum of appeal.
11. This being so, the case, in my opinion, falls within the purview of Section 177(e) of the Tenancy Act and the appeal lay to the District Judge who ought not to have declined jurisdiction. The result, therefore, is that the application is allowed. The order of the Judge is set aside and he is directed to receive the memorandum of appeal and to dispose of it in accordance with law. The applicants are entitled to the costs of this application against the opposite party.