S.P.PANDEY, J. - (1.) THIS is a plaintiff's second appeal under Section 331 of the UPZA & LR Act (here in after referred to as the Act), preferred against the judgment and order dated 24-2-2000, passed by the learned Additional Commis­sioner, Moradabad Division, Moradabad in appeal No. 17 of 1999-2000, allowing the appeal and selling aside the order dated 3-11-1999, passed by the learned trial Court in a suit under Section 176 of the Act, remanding The case to it for decision afresh on merits, according to law.
(2.) BRIEFLY stated, the facts, giving rise-to the instant second appeal are that Desh Raj Singh, plaintiff instituted a suit under Section 176 of the Act before the learned trial Court against the defendants, Gajraj Singh etc. for division of his share in the land in dispute as detailed at the foot of t he plaint. The learned trial Court passed the preliminary decree on 26-7-1997 and qur-ras were ordered to be prepared accord­ingly, which have been filed before it. Ob­jections were invited and notices were is­sued to the defendant who did not appear before the learned trial Court has, how­ever confirmed the lots filed on 24-8-1998 exparte. The defendant then moved a res­toration application for selling aside the expane order dated 24-8-1998 which was dismissed by the learned trial Court on 3-11-1999. Aggrieved by this order, the defendant, Gajraj Singh preferred an ap­peal. The learned Additional Commis­sioner has allowed this appeal set aside the orders passed by the learned trial Court and remanded the case to it for decision afresh on merits according to law after affording an opportunity of being heard the parties concerned. It is against this order that the instant second appeal has been preferred by the plaintiff, Dcsh Raj Singh before the Board. I have heard the learned Counsel for the parties and have also perused the record on file. For :he appellant it was contended that the learned lower appel­late Court has erred in law in entertaining the first appeal against an order passed under Section 47 CPC, refusing to set aside the order dated 24-8-1998 passed by the learned trial Court as the same was not maintainable; that the learned lower ap­pellate Court has wrongly exercised its jurisdiction while rendering the impugned order; that the learned Additional Com­missioner has wrongly and illegally held the service of summonses as insufficient merely for want of counter-signatures of the Pradhan and Lekhpal; that the im­pugned order, passed by the learned first appellate Court is bad in law as the qurras prepared as per the procedure prescribed by law and the sole moto of the defendant was only to delay the proceedings; that the restoration application, filed before the learned trial Court was bad for non­joinder and mis- joinder of necessary par­lies; that in any view of the matter, the impugned order, passed by the learned Additional Commissioner is illegal and without jurisdiction as no appeal lies against the order passed by the learned trial Court and as such the same cannot be allowed to sustain and this second appeal deserves to be allowed. In reply, the learned Counsel for the respondent urged that the learned lower appellate Court was perfectly justified in rendering the im­pugned order as the order passed by the learned trial Court was clearly exparte; that the instant second appeal is not main­tainable as the appellant should have filed a revision petition; that no substantial question of law is involved in this second appeal as the findings recorded by the learned lower appellate Court is a finding of fact which cannot be disturbed, at this second appellate stage; that in any view of the matter, this second appeal is liable to be dismissed, outright as the learned Addi­tional Commissioner has, in fact, ad­vanced the cause of substantial natural justice. In support, reliance has been placed on the case laws reported in 1985 ARC 477 (HC) and 1986 LCD 137.
(3.) I have closely and carefully con­sidered the contentions, raised by the learned Counsel, for t he parties, before me and have also gone through (he relevant ' records file. A bare perusal of the record makes it crystal clear that the notice, issued to the defendant isalleged to have been served, on him by affixation. The learned trial Court has, however, held the service as sufficient and passed the order dated 24-8-1998; confirming the lots filed. The restoration application moved by the defendant was also dismissed by it on 3-11-1999. The learned Additional Commis­sioner is of the view that no opportunity to file objection to the qurras, filed was af­forded to the defendant. He is also of the view that the service of summons, on the defendant by affixation was insufficient as there was no counter signatures of the Pradhan and Lekhpal on the report of the process-server. I entirely agree with t he-views expressed by the learned lower ap­pellate Court. The Court should adopt a sympathetic attitude in the matter of res­toration, especially when the service of summons has been denied. The learned Additional Commissioner has, in fact, ad­vanced the cause of substantial natural justice, by rendering the impugned order dated 24-2-2000. The findings, recorded by the learned first appellate Court is rather findings of fact which have been arrived at, after due and proper appreciation of evidence, on record, keeping in view the facts and circumstances of the instant case and cannot be disturbed at this second appellate stage. No illegality or material irregularity has been committed by it nor is there any" perversity in the impugned order. Moreover, no substantial question of law is involved in this second appeal nor is any such question framed in its memorandum. As a matter of fact, no harm or prejudice is caused to cither party by the impugned order as the parlies concerned would get ample opportunity of being heard and adducing evidence in support of their claims. In my opinion, the learned Addition­al Commissioner was perfectly justified in rendering the impugned order and as such, this second appeal having no force, is liable to be dismissed.;