Full Judgment
Banerji, J.
1. The question raised in this Court is whether the Court below was right in holding that no appeal lay to it. The facts are these: The respondent applied to the Revenue Court for partition. The appellant raised an objection as to the respondent's title and asserted that by a decision of the Civil Court, passed in 1896, his title had been declared and chat after the passing of that decision, he had been in adverse proprietary possession for more than 12 years and had thus acquired an indefeasible title. The Assistant Collector proceeded to determine the objections put forward by the appellant. There can be no doubt that the appellant's objections raised a question of proprietary title. It is equally clear that those objections raised a question of title which could not have already been determined by a competent Court in the previous litigation, inasmuch as it was asserted that the appellant had, since the date of the decision of the Civil Court, been in adverse proprietary possession. Thus, there was clearly a question of proprietary title which had not been determined by a Court of competent jurisdiction, and, therefore, under Section 111 of the United Provinces Land Revenue Act, it was the duty of the Assistant Collector to act in one of the two ways mentioned in the section. He could either have referred the appellant to the Civil Court to have the question of his title determined or he could himself have tried that question. Apparently, he proceeded to try the question himself, because it appears from his judgment that he was disposing of the objection raised by the appellant. It is true, that he did not follow the procedure laid down in the Code of Civil Procedure as required by Sub-section (3) of Section 111. But from that it does not follow that he did not try or profess to try the question of proprietary title. As a matter of fact, he did try it, and as he did so an appeal lay to the District Judge under Section 112. In ray opinion, the learned Judge was wrong in holding that no appeal lay to him. He ought to have entertained the appeal, and if, in his opinion, it appeared that the Assistant Collector had not proceeded to try the case in the manner required by law, he ought to have referred back the case to him for proper trial. But in holding that no' appeal lay to him, he was, in my opinion, wrong. I accordingly allow the appeal, set aside the decree of the Court below and remand the case to that Court under Order XLI, Rule 23, Code of Civil Procedure, with directions to re-admit it under its original number in the register and to dispose of it according to law. Costs here and hitherto will allow the event. The costs in this Court will include fees on the higher scale.