JUDGMENT George Knox, A.C.J. and Richards, J.
1. This was a suit to re-cover possession of land, and also for an injunction restraining the defendant from interfering with the possession of the plaintiffs. The plaintiff's case was that the defendant had been his tenant, that the latter had been duly ejected and had retaken possession. The defendant pleaded that his possession was the possession of an owner, and that he was not and had never been the tenant of the plaintiff quoad the land in dispute. It appears that in a suit in the Revenue Court between the same parties the defendant had pleaded that he was a proprietor and not a tenant. The Assistant Collector on the 19th of January 1903 gave a decree for possession deciding the question of proprietary title himself against the defendant. There was an appeal to the Commissioner, who reversed the finding of the Assistant Collector. It is quite clear that if the Commissioner had any jurisdiction to entertain the appeal, his decision is binding on the parties and that the plaintiff cannot succeed in the present suit. On the other hand, if the decision of the Commissioner was made absolutely without jurisdiction, and if the decree of the 19th of January 1903 was made by a Court of competent jurisdiction and never set aside on appeal by a Court competent to set it aside, the decree of the 19th January 1903 must bind the parties. It then becomes necessary to decide the question as to whether or not the Commissioner had. jurisdiction to entertain the appeal from the decree of the 19th January 1903. The defendant contends that the Commissioner had no jurisdiction. Section 177 of the Agra Tenancy Act, 1901, provides for appeals to the District Judge in a number of cases, and amongst others, Clause (e), in all suits in which a question of proprietary title has been in issue in the Court of first instance and is a matter in issue in appeal. Now it is quite clear that in the present case a question of proprietary title was in issue before the Assistant Collector and was also a matter in issue in appeal. Prima facie, therefore, it would appear that an appeal lay to the District Judge and not to the Commissioner. We think that it was clearly the intention of the Legislature that in cases where a question of proprietary title arises, the ultimate decision of the case should rest with the Civil Court, and not with the Courts of Revenue. It is argued, however, that Section 179 provides that an appeal shall lie to the Commissioner from all suits included in group C of the fourth schedule to the Act. Now the suit in which the decree of the 19th January 1903 was made was clearly included (at the time of its institution) in group C, and the argument is that, notwithstanding the provisions of Section 177, to which we have referred, the appeal did lie to the Commissioner. The section is no doubt somewhat ambiguous. A reference to Section 199 makes the matter fairly clear. That section provides that if in any suit filed in the Revenue Court against a person who is alleged to be the plaintiff's tenant, the defendant pleads proprietary right, the Revenue Court; is either to require the defendant to go to the Civil Court, as provided by Clause (a), or to determine the question itself, as provided by Clause (6). It must be assumed that in the suit before the Assistant Collector, the latter decided to determine the question himself which in fact he did do when he gave the decree of the 19th January 1903. Clause (3), Section 199, then provides that when the Court decides the question of proprietary title, it shall follow the procedure laid down in the Code of Civil Procedure. Section 200 provides how the District Judge or the High Court are to deal with appeals from the Revenue Court where a question of title has been determined by that Court. In oar judgment when the Assistant Collector decided to determine the question of title himself, the suit ceased to be a suit included in group C, and the Revenue Court for the purposes of that suit ceased to be a Revenue Court in the strict sense of the word and became for the moment a Civil Court competent to try the question of proprietary title, with a right of appeal by either party to the District Judge. The result is that we allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. As we think that the defendant ought to have raised the question of jurisdiction of the Commissioner when the appeal was taken from the Assistant Collector to him, we make no order as to costs.