S.P.PANDEY, j. - (1.) THIS is a second appeal under Section 331 of the U.P.Z.A. and L.R. Act (hereinafter referred to as the Act), preferred against the judgment and order, dated 25-3-1994, passed by the learned Additional Commissioner, Jhansi, Division, Jhansi in Appeal No. 5/87 of 1992-93/Jhansi, allowing the same and remanding the case under Section 176 of the Act to the learned Trial Court for decision afresh on merits, according to law, in the light of the observations, made by him in the impugned order.
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that after the preliminary decree was passed by the learned Trial Court on 5-3-1991, the Lekhpal, concerned submitted the lots, accordingly, on 25-4-1992, on the basis of the possession of the parties, concerned, against which no objections were filed by the parties, concerned. The learned trial Court, after completing the requisite formalities, vide its decree, dated 23-5-1992, passed the final decree, accordingly. On 28-5-1992, Prem Singh moved an application for recalling the order, dated 23-5-1992. The learned trial Court, after hearing the parties, concerned, rejected this application, vide its order, dated 30-9-1992 and as such, he went up in appeal before the learned Additional Commissioner, who has allowed the same and remanded the case to the learned trial Court for decision, afresh, on merits, according to law, after affording due and reasonable opportunity of being heard and adducing evidence, if any, to the parties, concerned, vide his order, dated 25-3-1994 and therefore, it is against this order that the instant second appeal has been preferred by Karan Singh before the Board. I have heard the learned Counsel for the appellant and have also perused the record on file. None responded for the respondents, despite due notice and repeated calls and therefore, the case proceeded ex parte against them. Assailing the impugned order, the bone of contentions of the learned Counsel for the appellant inter alia, in a nut shell, are, firstly, that since the final decree was passed by the learned trial Court and the lots were allocated to the parties, concerned on the basis of their actual physical possession, as the difference between the valuation of the same were not more than 10% and no objections were filed against the same, the restoration application moved by the respondent was, in fact, not maintainable in law and therefore, the learned Court below, has grossly erred in remanding the case to the learned Trial Court, which was perfectly justified in rejecting the application, dated 28-5-1992; secondly, that since the respondent had full knowledge of the proceedings before the learned trial Court; as per the vakalatnamas on the record, no case for remand is made out because the learned trial Court has disposed of the matter, in question, on merits and therefore, the impugned remand order cannot, at any stretch of imagination, be allowed to sustain and this second appeal very richly deserves to be allowed in the facts and circumstances of the instant case.
(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the appellant and have also scanned the record on file. On the pleadings of the parties, concerned, the following substantial questions of law involved in this second appeal were framed : “1. Whether or not the findings recorded by the learned Court below have been arrived at after due and proper appreciation of evidence on record, in correct perspective of law? 2. Whether or not the qurras have been prepared as per rules on the subject?'', As a matter of fact, the learned Additional Commissioner is of the view that the qurras, submitted by the Lekhpal concerned, have not been prepared as per Rules on the subject. It has been clearly observed by him that consent of the parties, concerned, to the lots prepared were not accorded as their signatures were not obtained upon the same and the difference in valuation of the lots was much more than 10% and as such, it appears that the lots have been prepared without observing the Rules on the subject. Since no due and reasonable opportunity to file objections to the same has been afforded to the parties, concerned, by the learned trial Court, the remand order is perfectly justified, in law, in the facts and circumstances of the instant case. I entirely agree with the views, expressed by the learned Additional Commissioner, with which no interference is called for at this stage. The appellant has nothing to worry about and feel aggrieved or prejudiced by the impugned order, as the doors are still open to the parties, concerned, who shall certainly get ample opportunity of being heard and adducing evidence, if any, before the learned Court of first instance and therefore, this second appeal, having no force, very richly deserves dismissal, out right.;