1. The plaintiff-appellant instituted a suit under Sections 150 and 154 of the Tenancy Act against the defendants for the resumption of what purported to be rent free land in his mahal on the allegation that the land in question was granted for the performance of a specific service which he no longer required.
2. The defendants asserted that the giant had been made to them unconditionally and that it was thus not resumable under Section 154, and further that it had been held rent-free for 50 years by two successors of the original grantee, and that thus they held proprietary rights in the same. The Assistant Collector decided that the grant was unconditional and as such, not resumable, but that it had not been held rent-free for 50 years by two successors of the original grantee. He, therefore, assessed rent thereon under Section 157. The judgment is dated the 15th April 1920. On the 16th June 1920 the plaintiff appealed to the Commissioner on the ground that the land had been granted for the performance of a specific service which he no longer required and demanded the 'ejectment of the defendants. He further appealed that, in any circumstance, the status of the defendants had been incorrectly determined and that the lent fixed was pot sufficient. This appeal was within time if it lay to the Commissioner. It was not within time if it lay to the Court of the District Judge. It was not an appeal against a decree in a suit included in groups A and B, or in a suit under Sections 159, 160, 161, 162, 164 and 165 and it raised no question of proprietary title. It would, therefore, appear that the appeal lay to the Commissioner. When the appeal was filed there was no question of proprietary title in issue in the appeal although such a question had been in issue in the Court of first instance.
3. On the 31st of August 1920 the defendants having received notice of the appeal, filed, as they were entitled to do, a cross objection under Order XLI, Rule 22 in which they requested the Court to dismiss the suit altogether because, on their allegations, it was established that they lad proprietary title in the plot inasmuch as the grant was for more than 50 years and held by two successors to the original grantee. The filing of this cross-objection introduced a question of proprietary title as an issue in the decision of the appeal. The Commissioner then took the curse (which was the only possible course) of returning the appeal and the cross-objection to the parties with directions to file them before the District Judge. As he was precluded from deciding the question of proprietary title and as the cross-objection had now become merged in the appeal and he had to decide every point raised in both, he took a correct view of tie law. He does not refer to the decision in Raja Partab Bahadur Singh v. Abdus Salam 31 Ind. Cas. 357 which is a decision of the Board of Revenue. That decision undoubtedly supported his view and lays down the only feasible procedure as to what Is to be done in such circumstances.
4. The plaintiff-appellant then proceeded to present his appeal to the District judge. He was late by two days through unavoidable cause and this District Judge has condoned the lateness of two days. But the District Judge has dismissed the appeal on the ground that at the time it was presented to the Commissioner the period of limitation for filing it before the District Judge had already expired. He considered that there was no sufficient cause under Section 5 of the Limitation Act justifying extension of the time. His view was that the appellant was ignorant of the law and that ignorance of the law was no excuse. I do not propose to discuss how far the appellant would be excused if he had accepted in good faith the honest, though mistaken, advise of his Counsel, because in this particular case the appellant's Counsel was right. The appeal did lie to the Court of the Commissioner and it was not until some two months had elapsed that a situation arose which prevented the Commissioner from proceeding with its decision. Had the cross-objection not Ken filed, or bad a cross-objection been filed which did not raise a question of proprietary title, the Commissioner would have been seized with the appeal and his Court would have been the proper Court to decide it, and the circumstance which deprived the Commissioner of his jurisdiction was one which, could not possibly have entered into the calculations of the appellant at the time the appeal was instituted. I, therefore, find that the appellant bad sufficient cause under Section 5 of the Limitation Act for presenting his appeal beyond time in the Court of the District Judge. I, therefore, allow this appeal and send back the appeal and the cross-objection to be decided by the learned District Judge on the merits according to law. Costs here and hitherto will follow the result.