JUDGMENT :

Salil Kumar Rai, J.

1. Heard the Counsel for the parties.

2. Against an alleged compromise decree dated 3.7.1958 passed in Case No. 1519 registered under section 229-C of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950'), the respondent No. 4, i.e., Sudarshan (who died during the pendency of the case in the Courts below) filed a recall application on 20.4.1998 which was dismissed by the Deputy District Magistrate, Rasra, District Ballia vide his order dated 21.8.2002. Against the order dated 21.8.2002, the respondent No. 4 filed Appeal No. 2/B of 2002 under section 331 of the Act, 1950 which was allowed by the Commissioner, Azamgarh Division, Azamgarh vide his order dated 4.10.2002. The recall application filed by the petitioner was dismissed by the Commissioner vide his order dated 20.5.2005 and the consequential Revision No. 120 of 2004-05 was dismissed by the Board of Revenue vide its order dated 28.2.2014. The order dated 28.2.2014 passed by the Board of Revenue and orders dated 20.5.2005 and 4.10.2002 passed by the Commissioner have been challenge in the present writ petition.

3. It was argued by the Counsel for the petitioner that the order dated 4.10.2002 passed by the Commissioner allowing Appeal No. 2/B of 2002 was passed without issuing any notice and without giving any opportunity of hearing to the petitioner. The petitioner filed a recall application immediately when he came to know about the order dated 4.10.2002 and the said recall application has been wrongly dismissed by the Commissioner vide his order dated 20.5.2005. It was further argued that Appeal No. 2/B of 2002 was not maintainable in view of a joint reading of section 331(3) of the Act, 1950 and section 104 along with Order XLIII of the Code of Civil Procedure, 1908 and, therefore, the order dated 4.10.2002 passed by the Commissioner was without jurisdiction.

4. A reading of the order dated 4.10.2002 passed by the Commissioner, Azamgarh Division, Azamgarh does not reveal that the petitioner was given any opportunity of hearing at the appellate stage and the case of the petitioner has also not been considered by the Commissioner. Further, a reading of the order dated 4.10.2002 passed by the Commissioner also shows that the appeal has been allowed by the Commissioner even though the Commissioner had heard arguments only on the issue of maintainability of the appeal. The order dated 4.10.2002 was passed by the Commissioner without giving any opportunity of hearing to the petitioner and has been allowed at the admission stage itself without meeting the grounds stated by the Deputy District Magistrate in his order dated 21.8.2002. Appeal No. 2/B of 2002 was filed against the order dated 21.8.2002 and through his aforesaid order, the Commissioner has also set-aside the decree dated 3.7.1958 passed by the trial Court after recording a finding that the decree was vitiated by fraud. A reading of the order dated 4.10.2002 does not reveal that any evidence indicating that the decree was vitiated by fraud has been considered by the Commissioner, i.e., the Appellate Court. Further, no opinion has been expressed by the Commissioner in his order dated 4.10.2002 regarding the maintainability of the appeal against the order dated 21.8.2002 dismissing the recall application filed by respondent No. 4. In view of the aforesaid, the order dated 4.10.2002 passed by the Commissioner in Appeal No. 2/B of 2002 is liable to be set-aside. The orders dated 20.5.2005 and 28.2.2014 passed by the Commissioner and the Board of Revenue dismissing the recall application filed by the petitioner and the revision filed by him are merely consequential to the order dated 4.10.2002 and are also liable to be set-aside.

5. It was stated by the Counsel for the parties that the proceedings before the Commissioner in Appeal No. 2/B of 2002 stand abated because a notification under section 4 of the Uttar Pradesh Consolidation of Holdings