S.P.PANDEY, J. - (1.) THIS is a second appeal against the judgment and decree dated 10-1-1996/25-1-1996, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in Appeal No. 46/54 of 1993-94/Jhansi, dismissing the same and confirming the judgment and decree, dated 28-12-1993/27-1-1994, passed by the learned trial Court in a suit under Section 176 of the U.P.Z.A. and L.R. Act (hereinafter referred to as the Act).
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that Pooran etc. plaintiffs instituted a suit under Section 176 of the Act against the defendants Brij Laj etc. for division of holding. On notice, the defendants contested the suit, denying the allegations. The learned trial Court, after completing the requisite trial, passed the preliminary decree, vide its judgment and decree, dated 28-12-1993/27-1-1994, against which the defendants Brij Lal etc. preferred a first appeal before the learned Additional Commissioner, who, vide his judgment and decree, dated 10-1-1996/25-1-1996, has dismissed the same as not maintainable, in law and therefore, it is against these judgments and decrees, passed by the learned Courts, below that the instant second appeal has been preferred by him before the Board. I have heard the learned Counsel for the parties and have also perused the record on file. Assailing the impugned order, the bone of contentions of the learned Counsel for the appellant inter alia, in a nut-shell is that since a first appeal against the preliminary decree, passed by the learned trial Court is very well maintainable in law, as per the settled principle of law, the learned Additional Commissioner has grossly erred in dismissing the same, as not maintainable and therefore, such an order can at any stretch of imagination, be allowed to sustain and the first appeal very richly deserves to be remanded to the learned Addition Commissioner for decision of the same afresh on merits, according to law. In support, reliance has been placed on the case-law, reported in 1989 RD 61, whereby it has been held that an appeal lies against the preliminary decree, deciding the shares of the parties concerned. The learned Counsel for the respondents, in reply, urged that in the facts and circumstances of the instant case as well as the evidence on record, the learned Court below was perfectly justified in dismissing the appeal and therefore, this second appeal, having no force, very richly deserves dismissal, outright.
(3.) I have closely and carefully considered the arguments, advanced before me by the learned Counsel for the parties and have also scanned the relevet papers on file as well as the case- law cited by the learned Counsel for the appellants. On the pleadings of the parties concerned, following substantial questions of law emerges out, for decision of the instant second appeal: “(1) Whether or not the first appeal, filed before the learned Lower Appellate Court was maintainable? (2) Whether or not the findings, recorded by the learned trial Court have been arrived at after due and proper appreciation of evidence on record, in correct perspective of law?'' As a matter of fact, after the preliminary decree was passed by the learned trial Court, a first appeal was preferred by the defendants, Brij Lal etc. before the learned Additional Commissioner against the same, deciding the shares of the parties, concerned, which was dismissed by him as not maintainable, in law. As per the settled principle of law, an appeal lies against the preliminary decree, deciding the shares of the parties, concerned and therefore, the learned Additional Commissioner was not at all justified in dismissing the same, as not maintainable, in law and as such, I, without commenting upon the merits of the case, am of the considered view that this is rather a fit case for remand to the learned Lower Appellate Court for decision of the first appeal, afresh, on merits, according to law, after affording due and reasonable opportunity of being heard to the parties, concerned.;