- (1.) ANJANI Kumar, J. These two writ petitions since raise common question of law, therefore, are being decided by a common judgment. Both the writ petitions arise out of proceedings of suits filed by the plaintiff under Section 229-B of U. P. Z. A. and L. R. Act (in short the Act) and in both the cases petitioners are aggrieved by the orders passed by the Board of Revenue impugned in the writ petitions wherein the Board of Revenue has decided the second appeal filed before Board of Revenue against the petitioners. Learned Counsel for the petitioner has submitted that a second appeal lies against the judgment and order of lower appellate Court in view of the provisions of Section 331 (4) of the Act which is reproduced below : "331 (4) that a second appeal shall lie on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 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 6 of the Schedule aforesaid".
(2.) LEARNED Counsel for the petitioner has submitted that a perusal of Section 331 (4) that a second appeal shall lie to the Board of Revenue on any of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (V of 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 6 of the Schedule aforesaid. Learned Counsel for the petitioner further relied upon Section 341 of the Act which provides as under : "341. Application of certain Acts to the proceeding of this Act.- Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court Fees Act, 1870 (VII of 1870), the Code of Civil Procedure, 1908 (V of 1908), and the [limitation Act, 1963 (XXXVI of 1963)] [including Section 5 thereof] shall apply to the proceedings under this Act. " On the strength of aforesaid two provisions and Section 100 of the Code of Civil Procedure read with sub-sections (3) (4) and (5) which are reproduced below Counsel for the petitioner has submitted that a second appeal can be entertained and decided by Board of Revenue only when Board of Revenue while deciding the second appeal is satisfied that substantial question of law is involved in any case, thereafter second appellate authority shall formulate that substantial question. It is only after satisfaction of the second appellate authority that a substantial question of law is involved and formulation of the question so involved the second appeal shall be heard and decided. Section 100. Second Appeal. . . . . . . . (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
(3.) LEARNED Counsel for the petitioner has relied upon the decision of the Apex Court in a case reported in 2006 (101) RD 449 (SC), Gian Dass v. Gram Panchayat, Village Sunner Kalan & Ors. , wherein the Apex Court relying upon earlier decision of the Court in the case of Ishwar Dass Jain v. Sohan Lal, 2000 (29) ALR 756 and the case of Roop Singh v. Ram Singh, 2000 (2) JCLR 65 (SC) : 2000 JIR 617 (SC) : 2000 (39) ALR 484. The para 11 of the case of Gian Dass (supra) the Apex Court has ruled as under : "11. The plea about proviso to sub-section (5) of Section 100 instead of supporting the stand of the respondent rather goes against them. The proviso is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression "on any other substantial question of law" clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question. " Learned Counsel for the petitioner has submitted that it was therefore, not open to the Board of Revenue to interfere with the second appeal without formulating substantial question of law as contemplated under Section 331 of the Act read with Section 100 (4) and (5) of Code of Civil Procedure.;