Rajes Kumar, J. - (1.) PRESENT writ petition has been filed against the order dated 21.6.2004, passed by Member, Board of Revenue in second appeal preferred by the petitioner against the order passed in first appeal dated 26.3.1998 dismissing the appeal.
(2.) IT appears that one Sri Vir Bhadra Awasthi, father of respondent Nos. 4 to 10 filed suit under Section 229B of U.P.Z.A. and L.R. Act (hereinafter referred to as "Act"). The said suit was decreed ex parte vide order dated 3.2.1991. Petitioner moved applications for recalling of the order on 29.6.1995 alongwith the application under Section 5 of the Limitation Act. The said applications were rejected on 4.7.1996, against which the petitioner filed appeal under Section 331 of the Act before the Additional Commissioner (Administration), Kanpur Division, Kanpur, which has been dismissed on 26.3.1998. Against the said order, petitioner filed Second Appeal No. 63 of 1997 before the Board of Revenue, which has been dismissed by the impugned order. Board of Revenue has dismissed the appeal on the ground that it was not maintainable and also on merit. Member Board of Revenue held that instead of filing the second appeal, revision should have been filed under Section 333 of the Act. Heard Sri Tripathi B. G. Bhai, learned counsel for the petitioner and learned standing counsel. Learned counsel for the petitioner submitted that it is true that the appeal under Section 331 of the Act was not maintainable but the Member Board of Revenue should have converted the said appeal into revision and should have decided the same.
(3.) LEARNED standing counsel states that not only second appeal even the first appeal against the order rejecting the recalling application was not maintainable under Section 331 of the Act and the petitioner should have filed revision under Section 333 of the Act against the said order. Having heard learned counsel for the parties, I find substance in the argument of learned standing counsel. Section 331 (3) and (4) read as follows : "Section 331. Cognizance of suits, etc. under this Act : (1) ..................... (2) ..................... (3) An appeal shall lie from any decree or from an order passed under Section 47 or an order of the nature mentioned in Section 104 of the Code of Civil Procedure, 1908 (V of 1908) or in Order XLIII, Rule 1 of the First Schedule to that Code passed by a Court mentioned in column No. 4 of Schedule II of this Act in proceedings mentioned in column 3 thereof to the Court or authority mentioned in column No. 5 thereof. (4) 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." ;