R. B. Misra, J. - (1.) The present petition under Art. 226 of the Constitution challenges the order of the Board of Revenue dated 26th of August 1972. The facts leading up to the present petition are as follows:- Mirza Kishwar Beg, petitioner No. 1, filed a suit under Sec. 229-B of the U. P. Zamindari Abolition and Land Reforms Act in the court of the Sub-Divisional Officer, Moradabad against the State of Uttar Pradesh, Nagar Palika and Zila Prishad, Moradabad. It appears that Smt. Nazeer Jahan Begum, petitioner No. 2 was later on impleaded on her own application as defendant No. 4. According to the plaintiff the land in suit was the grove of his predecessor-in-interest and the same became his bhumidhari after the date of vesting but by mistake the land in dispute was recorded as graveyard under the management of the Municipal Board and the District Board, Moradabad of which he had no knowledge and it was only on 30th of January, 1969 that he came to know about this entry. The State of Uttar Pradesh contested the suit alleging that the Zamindari abolition had not taken place in the town in question and as such the suit under Sec. 229-B of the Zamindari Abolition and Land Reforms Act was not maintainable; that the land in suit belonged to the State and no bhumidhari or sirdari right could accrue in it to any one, that the land in dispute was QABRISTAN and the suit was not maintainable on this ground as well; that the plaintiff was not in possession and that the suit was barred under Sec. 34(5) of the U. P. Land Revenue Act. The Nagar Palika, Moradabad also contested the suit substantially on the same grounds. Smt. Nazeer Jahan Begum, petitioner No. 2 who was arrayed as defendant No. 4 in that suit, filed a separate written statement and she claimed to be the heir of Mirza Farooq Beg. According to her the land, in suit was the graveyard of Mirza Farooq Beg.
(2.) The Sub-Divisional Officer decreed the suit by his order dated 30th of June, 1970. The plaintiff was found to be bhumidhar of the disputed plot to the extent of 1/2 share and Smt. Nazeer Jahan Begum, defendant No. 4, was held to be the bhumidhar of the remaining 1/2 share. The order of the Sub-Divisional Officer gave rise to two appeals. Appeal No. 30 was filed by Abdul Kadir and Mashooq Ali who were no parties to the suit before the trial court while Appeal No. 123 was filed by the O. P. State, Nagar Palika and Zila Parishad, Moradabad. Both the appeals were barred by time. The appellants, therefore, filed an application under Sec. 5 of the Limitation Act supported by an affidavit for the condonation of delay. The Additional Commissioner dismissed Appeal No. 39 filed by Abdul Kadir and Mashooq Ali on the ground that the same was not maintainable in as much as they were no parties to the original suit and, therefore, they had no locusstandi to file the appeal and the judgment and decree passed by the Sub-Divisional Officer could not bind them. They could agitate their rights by a properly instituted suit. Appeal No. 123 filed by the U. P. State and others was dismissed on the ground of limitation as in the opinion of the Additional Commissioner the cause shown for the condonation of delay was not sufficient. Against the judgment and decree of the Additional Commissioner, the State of Uttar Pradesh, Zila Parishad and Municipal Board, Moradabad filed second appeal. The second appeal was dismissed by the Board, of Revenue by its order dated 26-8-1972. The Board, however, has sought to proceed under Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act by invoking his suo moto revisional powers, The present petition has been filed by Mirza Kishwar Beg, the plaintiff and Smt. Nazeer Jahan Begum, defendant No. 4.
(3.) Sri Rajeshwari Prasad assisted by Sri H. S. Joshi and Sri Mohammad Mosin contended that the Board of Revenue by dismissing the second appeal affirmed the judgment and decree of the courts below and the judgment of the courts below merged into the judgment and decree of the Board of Revenue. The Board of Revenue thereafter has no power to exercise the revisional jurisdiction under See. 333 of the U. P. Zamindari Abolition and Land Reforms Act. It was further contended that the respondents, having filed the appeal against the judgment and decree of the trial court, could not invoke the revisional jurisdiction of the Board of Revenue under Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act. I find considerable force in either of the two contentions. The Board of Revenue in para 3 of its judgment observed as follows:- "I have gone through the record of the case and have heard the learned counsel for both the sides. The application seeking relief under Sec. 5 of Indian Limitation Act which was filed along with the second appeal is based simply on questions of fact. No legal issue is involved, in this prayer nor has the Court of First Appeal committed any error of law, in dismissing the First Appeal as time barred, I, therefore, do not find any force in the second appeal which is hereby dismissed." It is, therefore, quite evident that the Board of Revenue dismissed the appeal filed by the State of Uttar Pradesh and confirmed the order of the Additional Commissioner. The judgment and decree of the first and second courts thus merged into they judgment and decree of the Board of Revenue. I find support for this view in Kanti Saran v. L. Babu Ram, A.I.R. 1974 Alld. 302 . In that case this Court dismissed the revision challenging the order of the lower appellate court under Sec. 115 of the Code of Civil Procedure after hearing both the parties; with the result that the order of the lower appellate court merged in the order of this Court but the order was again challenged by filing a writ petition under Sec. 226 of the Constitution. It was held by a Division Bench of this Court that it was incompetent for the party to challenge the same by way of writ petition.;