Sir John Wallis. -

In this case the Board of Revenue of the United Provinces granted Raja Udit Narain Singh, since deceased, who will be referred to as the appellant, leave to appeal to His Majesty-in-Council from their order directing that respondent 1, Shaikh Mubarak Ali, should be re-entered on the register maintained by the revenue authorities under the United Provinces Land Revenue Act 3 of 1901, as a thekadar or holder of a permanent but not transferable lease in a village of which the appellant was the proprietor.

Respondent 1 had purported to transfer his theka or lease to his son and grandson respondents 1 and 2 with the object, it was alleged, of defeating the rights of succession of his other heirs under the Mahomedan law. On their application for mutation of names they were erroneously entered as pukhtadari tenants, a term applicable to tenants holding under a sub-settlement. They then applied that they might be entered as matahatdars, a description applicable to under-proprietors or persons holding a heritable and transferable right in the land as defined in Cl. 15, S. 4, U. P. Land Revenue Act 3 of 1901. The revenue authorities corrected the register but entered them as thekadars, the description under which their transferrer, respondent 1, had been entered.

They then applied to the Assistant Collector who ordered notice to go to the appellant as the superior proprietor. The appellant appeared and objected that the permanent lease had been forfeited by the transfer and that the transferees were at most mere tenants. The Assistant Collector upheld this contention and directed them to be registered as tenants (which, as will be seen, means tenants of the lands actually cultivated or otherwise occupied by them), that is to say, he upheld the appellant's contention that the theka had been forfeited and that they were not entitled to be entered either as thekadars or as matahatdars.

Respondent 1 thereupon, sued respondents 2 and 3 for a declaration that his gift to them was incomplete and no title had passed, and obtained a decree by consent. He then appealed to the Deputy Commissioner who ordered respondents 2 and 3 to be registered as thekadars. This order on appeal by the appellant here, was reversed by the Commissioner, who restored the order of the Assistant Collector. Respondent 1 then appealed to the Board of Revenue, who, after making respondents 2 and 3 parties here, respondents in that appeal, held that transfer in their favour was invalid and directed that the name of respondent should again be entered as thekadar. It was from this order that the appellant obtained leave to appeal to His Majesty in Council.

At the hearing before their Lordships, Mr. Dunne took a preliminary objection that no appeal lay, and Mr. De Gruyther, for the appellant, contended that the order under appeal had been made in the course of an inquiry as to "a dispute respecting the class or tenure of any tenant" within the meaning of S. 42, Land Revenue Act, as to which it is provided that the Collector in the trial of the dispute is to observe the procedure prescribed for cases of a similar kind for the trial of suits under the Oudh Rent Act 3 of 1886. As by S. 135 of that Act, save as otherwise provided, the provisions of the Code of Civil Procedure are applied to all suits and proceedings under that Act, Mr. De Gruyther contended that the provisions of the Code as to granting leave to appeal to His Majesty's Council were applicable to the present case. For the respondents it was contended that S. 42 was not applicable, and, even if it were, it merely directed the Collector in the trial of the dispute to observe the provisions of the Civil Procedure Code, and did not provide that that procedure should be observed as to appeals from his order.

It is unnecessary to deal with the latter contention because, in their Lordships' opinion, the dispute was about an entry in the register maintained under Cl. (a) and not under Cl. (e), S. 32, and bec