ORDER

R.M. Sahai, J. - In this petition directed against order of Board of Revenue whatever might have been the reason for the Board to decide the second appeal, directed against order of remand passed by the Additional Commissioner, on merits, its annoyance because the appellate court did not follow its direction as suggested by the Learned counsel for respondent or for reasons which cannot he brought on record as suggested by learned counsel for petitioners, it has provoked various shades of argument ranging from maintainability of appeal, the jurisdiction to decide a question of fact, deciding appeal on merits without hearing any argument on it, illegality in deciding question which had not been decided by lower appellate court. to error apparent committed by the member while deciding the appeal on merits.

2. To consider whether the Board of Revenue had jurisdiction to entertain the second appeal or not, it may he mentioned that the suit filed by respondent under S. 229B of U. P. Z. A. Act 1 of 1951 (hereinafter referred as Act) was decreed by trial court on 19th April 1974. This order was set aside on 19th Aug. by the Additional Commissioner against which opposite parties filed second appeal which was allowed and the Additional Commissioner was directed to decide the appeal on marits. When the appeal was taken up on 4th March 1977 the U. P. Land Laws Amendment Act had come into force. It abolished the tenure Sirdars since 28th Jan. 1977. The Additional Commissioner therefore without deciding the appeal on merit, as directed by the Board of Revenue, set aside the order of the trial court and remanded the case to trial court for fresh hearing after due opportunity to parties to amend their pleadings. It was also observed that the order was set aside with consent of parties.

3. The argument of non-maintainability of second appeal was founded both on nature of order passed by Additional Commissioner namely his failure to decide rights and liability of parties and the bar contained in S. 96(3) of Civil Procedure Code against consent decree. For the latter suffice it to say that S. 341 of the Act itself provides that the provisions of Code of Civil Procedure shall apply only if there is no specific provision in the Act itself. ,Under the Act a second appeal lies under cl. (4) of S. 3,(3) against a decree or final order passed in an appeal under sub-sec. (3). There being thus, specific provision in the Act itself which is a self contained Code maintainability or otherwise of second appeal cannot be judged by reference to S. 96.

4. As regards the first objection it cannot be disputed that a second appeal lies under the Act against a final order. A final order has been held to he one which decides the right of parties finally and does not leave the original proceedings in the court below (see Jethanand v. State of U. P., AIR 1961 S C 794, Savitri Devi v. Rajul Devi, AIR 1961 All 245 (F B). Mohd. Mahmood Hasan v. Govt. of U. P.. AIR 1956 All 457) (F B).

5. Assuming that the order of Additional Commissioner was not a final order therefore second appeal was not maintainable, the petitioner cannot be permitted to raise it as it was never raised before the Board nor it has been made a subject matter of challenge in the petition. There is no averment that it was raised before Board which failed to decide it. The argument that it is a question of jurisdiction and can be raised at any stage cannot he accepted as it is not disputed that revision under S. 333 of the Act lies against .am order passed by a subordinate court. Rather it was urged by the learned counsel for petitioners that a first appeal from order was maintainable. It is not a ease therefore of inherent lack of jurisdiction. Moreover if the petitioner had objected the respondent could have prayed for conversion of appeal into revision. As the opposite party was prevented from availing this remedy the objection cannot be en(ertained.

6. On the jurisdiction to decide the appeal on