Hari Swarup, J. - (1.) SAFDAR Ali Khan Respondent No. 2 filed a suit Under Section 209 of the UP ZA and LR Act (hereinafter referred as the Act) for ejectment of Mahendra Kumar the present Petitioner. The trial court dismissed the suit accepting the defence contention that the land in dispute was not identifiable. The first appellate court allowed the appeal and set aside the decree and remanded the case to the trial court for a fresh decision. The Defendant went up in appeal to the Board of Revenue. The Board of Revenue without going into the merits of the case dismissed the appeal as not maintainable. Relying on an earlier judgment of its own reported in Deo Narain v. Ram Sumer, 1956 RD 344 the Board of Revenue held that no appeal was maintainable against the order of remand.
(2.) THE suit had been filed Under Section 209 of the Act. An appeal lay against the decree of the trial court to the Commissioner Under Section 331(3) of the Act. Every order or decree passed in appeal is appealable to the Board of Revenue if it is an order or decree as contemplated by Sub -section (4) of Section 331 of the Act. Sub -sections (3) and (4) of the Act read as under: An appeal shall lie from an order passed Under Sections 47, 104 and Order 41 Rule 1 Code of Civil Procedure, 1908 (Act V of 1908), or any final order or decree passed by a court mentioned in column No. 4 in the proceedings mentioned in column No. 3 to the court 'or authority mentioned in column No. 5 thereof.
(3.) A second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 from the final order or decree passed in an appeal Under Sub -section (3), to the authority, if any, mentioned against it in column no, 6 of the schedule aforesaid. The first appellate court could have disposed of the appeal either by passing a decree or a final order. It has disposed of the appeal by passing an order of remand. If that order is a final order within the meaning of Sub -section (3) it would be appealable to the Board of Revenue Under Sub -section (4) of Section 331 of the Act. While passing the order of remand the first appellate court has finally disposed of the appeal before it. The order must, therefore, be deemed to be a final order. The appeal against such an order was accordingly maintainable. The case of Deo Narain v. Ram Sumer (supra) relied on by the Board of Revenue was in respect of an appeal Under Section 267 of the UP Tenancy Act and it was held by the Board of Revenue that under that section an appeal lay only against a decree and could not lie against the remand order as it was not a decree. The present Section 331(4) permits an appeal to the Board of Revenue not only against decrees passed by the first appellate court but also against final orders passed by it in appeal. The appeal, therefore, before the Board of Revenue was a competent appeal and the Board failed to exercise the jurisdiction vested in it by law in dismissing it as non -maintainable. The petition is accordingly allowed, the order of the Board of Revenue dated 9 -2 -1970 dismissing the appeal as not maintainable is quashed and the Board of Revenue is directed to decide the appeal on merits. In the circumstances the parties will bear their own costs. Appeal allowed.;