JUDGMENT
1. This is a reference by the Commissioner of the Allahabad Division under Section 267, Act 3 of 1926 on a question of jurisdiction. The suit in question was brought by the plaintiffs who claimed to be exproprietary tenants of a holding, and they sued the defendants for ejectment under Section 58, Agra Tenancy Act, 2 of 1901, alleging that the defendants were their sub-tenants. The defendants claimed to hold as khudkasht and not as sub-tenants. The Assistant Collector decided that the defendants held the land as khudkasht and not as sub-tenants of the plaintiffs, and he dismissed the suit on these grounds. The plaintiffs filed an appeal against this order in the Court of the District Judge of Cawnpore. The respondents objected that an appeal did not lie to the District Judge The District Judge held that under Section 271, Expln. 2, Act 3 of 1926, a question of proprietary right did not include the question whether land in the actual possession of a proprietor thereof was held by such proprietor as his sir or khudkasht or as a tenant or subtenant, and accordingly he held that no question of proprietary right was raised in the appeal in his Court, and therefore the appeal lay to the Commissioner and not to the District Judge. It is clear that under Act 2 of 1901 an appeal in the present case would have lain to the District Judge, because there was no proviso in that Act similar to Section 271, Expln. 2, Act 3 of 1926. The sole question is whether the procedure for the appeal should be under Act 2 of 1901 or under Act 3 of 1926. It has been laid down by a Full Bench of this Court in Rama Singha v. Shankar Dayal A.I.R. 1928 All. 437 that an appeal is a mere continuance of the original proceedings initiated by the filing of the plaint, and the right to continue that proceeding by way of an appeal cannot be affected by a new Act unless that Act expressly makes provision to that effect. Right of appeal is a substantive right and not a matter of procedure. The District Judge has doubted the application of this ruling to the present case, and he considers that its application is limited to a case where the new Act provides no appeal at all. But in the ruling quoted reference is made to the case of the Colonial Sugar Refining Co. Ltd. v. Irving [1905] A.C. 369.
In that case ordinarily an appeal lay to their lordships at the Privy Council from an order of the Supreme Court. While the matter was pending in that Court the law was amended so as to allow an appeal to the High Court. Their Lordships of the Privy Council hold that the new Act could not deprive the party of his right to appeal to the Privy Council.
2. The present case is similar to the Colonial Sugar Refining Co, Ltd. v. Irving [1905] A.C. 369. As it is also a case where a new Act is changed, the Court to which the appeal lies is the Court of the District Judge. We consider, therefore, that according to the Privy Council ruling an appeal should lie to the Court to which an appeal lay at the time the suit was filed, i.e., to the Court of the District Judge. We accordingly return this reference, and we direct the District Judge to admit this appeal under its original number and dispose of it according to law. A copy of this order will be sent to the Commissioner, and the record will be sent direct to the District. Judge. Costs will abide the result.