JUDGMENT

Sundar Lal, J. - This is a reference u/s 195 of Act II of 1901 (U. P.), made by the District Judge of Budaun under the following circumstances:--The plaintiff, Har Narain, avers that he is the zamindar and owner of two plots of land Nos. 47/2 and 52/3 in Patti Muhammad Ali in Mahal Altaf Husain of Mauza Ganaur, of which the defendant inderman is a non-occupancy tenant under the plaintiff. He sues for the ejectment of the said defendant, u/s 58 of Act II of 1901 (U.P.). The second defendant to the suit is one Ganga Prasad alias Gangola, who according to the plaint is colluding with defendant No. 1 and has been put in possession of the said land by the defendant No. 1. u/s 64 of the Agra Tenancy Act (II of 1901) in all suits for ejectment any person in possession claiming through the tenant may be joined as a party to the suit. Ganga Prasad alias Gangola was, therefore, properly made a party defendant to the suit on the allegations made in the plaint.

2. Inderman filed a written statement disclaiming all interest as a tenant in the land in suit. The second defendant Ganga Prasad alias Gangola has defended the suit on the ground that he is in possession of plot No. 47/2 as a tenant of one Sheo Prasad (who is alleged to be the real zamindar and owner of the land) under a registered lease, dated 27th April 1914, granted by Sheo Prasad aforesaid for the term of nine years. As to the other plot (No. 52/3), the defendant alleges that it is in the possession of Sheo Prasad aforesaid It is not clear what exact interest Sheo Prasad had in the land, but it appears that in 1914 the plaintiff, Har Narain, had sued Inderman and Sheo Prasad for the recovery of rent due to him from the defendant Inderman. That suit was decreed in appeal by the Collector by a judgment dated 24th July 1914. Sheo Prasad's pretensions to the land seem to have been disregarded by the Collector. It was during the pendency of that suit that the lease relied upon by the defendant was granted by Sheo Prasad. The Court of first instance in this case has held that the plaintiff was the real owner of the land in suit and that Inderman was a tenant of the plaintiff. It has decreed the claim.

3. The defendant Ganga Prasad alias Gangola preferred an appeal against the said decree in so far as it relates to plot No. 47/2. The appeal was in the first instance filed by him in the Court of the Commissioner. That officer, however, returned the memorandum of appeal for presentation to the proper Court on the ground that no appeal lay to him. The defendant then filed the memorandum of appeal in the Court of the District Judge, who is of opinion that the appeal really lay to the Commissioner and not to him, but in view of the fact that the Commissioner has already refused to entertain the appeal for want of jurisdiction, the learned Judge has made this reference to this Court for the determination of the question to which Court the appeal lies in law.

4. The suit is really one u/s 58 of the Agra Tenancy Act, and falls in group ''C" of the Fourth Schedule to that Act. u/s 179 of the said Act an appeal lies to the Commissioner from the decree of the Assistant Collector, unless by some other section of the Act an appeal is given in any case to another Court. Section 177 of the Act gives an appeal to the Court of the District Judge ' in all suits in which (e) a question of proprietary title has been at issue in the Court of first instance and is a matter in issue in the appeal." The defence of Ganga Prasad alias Gangola in the suit is that the plaintiff is not the owner of the land in suit, but one Sheo Prasad under whom the defendants claim. The question of plaintiff's proprietary title to the land was thus put in issue in the Court of first instance and is a matter in issue in the appeal. In the case of the Maharaja Parbhu Narain- Singh v. Baldeo Prasad 8 Ind. Case. 817 : 8 A.L.J. 36 the tenant in a suit for the assessment of rent denied the tede of the plaintiff to the land in s