JUDGMENT K.N. Singh, J. - Ram Sahai petitioner has filed the present petition challenging the judgment and order of Board of Revenue, U.P., Allahabad, additional Commissioner, Jhansi Division, and Additional Sub-Division Officer, Garautha, Jhansi, and has prayed for issue of a writ of certiorari quashing the order passed by these respondents. 2. The facts which led to the filing of the present petition briefly are that the petitioner Ram Sahai, Ram Kumar, opposite party no. 4 and Rani Krishan, opposite party No. 5 were co-tenants-holders of certain plots. Ram Kumar filed a suit under Section 176 of the U.P.Z.A. and L.R. Act for the partition on the holding. A preliminary decree was passed and the petitioner's share was declared to be and that of respondents Nos. 4 and 5 one fourth each. After the confirmation of the preliminary decree there remained no dispute with regard to the shares. The holding in question was less than 6.25 acres, hence it could not be partitioned. Steps were taken by the trial court. Sub-Divisional Officer, Garotha to dispose of the land in accordance with the provisions of Section 178 of U.P.Z.A. and L.R. Act, hereinafter referred to as the Act. Valuation of the land was ascertained and fixed under Section 179 of the Act and thereafter the court determined preferential right of purchase of the co-tenure-holders. The trial court held that Ram Kumar who was minor at that time had a preferential right of purchase as he was a landless person. The court, therefore, made an offer of sale to Ram Kumar who accepted the offer and deposited the sale money on 8-5-1967. The petitioner filed an appeal against the judgment and order of the Sub-Divisional Officer. The petitioner contended that Ram Kumar was not a preferential heir. During the pendency of the appeal before the Additional Commissioner Bhagirath, father of Ram Kumar was murdered and after his death Ram Kumar inherited landed property from his father. At the time of the hearing of the appeal before the Additional Commissioner, the petitioner contended that since Ram Kumar had inherited landed property from his father, he could not be treated as a landless person and hence he had no preferential right of purchase under Sec 180 of the Act. The Additional Commissioner by his judgment dated 3rd April 1968 rejected this contention. The Additional Commissioner by his judgment dated 3rd April 1968 rejected this contention. Thereafter the petitioner filed second appeal before the Board of Revenue which was also rejected by its order dated 30-6-1969. The Board of Revenue held that the other co-sharers including petitioner had transferred their shares in order to become landless and to contest the claim of Ram Kumar. It further held that the rights of the parties could be determined on the date when the suit was filed and not with reference to any subsequent events which may have taken place during the pendency of the appeal. It, therefore, upheld the findings of the trial court as well as of the lower appellate court. 3. I have heard the learned counsel for the parties. It has been contended on behalf of the petitioner that the court was bound to take into account any subsequent event which went to the very root of the matter. It was urged that under the Act and rules framed thereunder only a landless person has been authorised to have a preferential right of purchase and therefore the very intent and purpose of the statute would be defeated if Ram Kumar is allowed to purchase the land in question even after he inherited sufficient area of land from his father. The learned counsel for the petitioner has, therefore, contended that the Board of Revenue as well as the other two courts have committed a patent error of law in refusing to take into account the subsequent event which went to the root of the subject-matter in dispute. 4. Learned counsel for the respondent Mr. V.K.S. Chaudhary has urged that no appeal lay against the order of he trial court determining the preferential right of purchase by a co-tenure-holder and, as such no appeal was maintainable before the Additional Commissioner or before the Board of Revenue. He has further contended that it is only the appellate court which can take into account subsequent events which may have taken place during the pendency of the appeal, and since no appeal was maintainable in the present case, the Board of Revenue or the Additional Commissioner could not take into account that fact that Ram Kumar had inherited landed property from his father during the pendency of appeal. Mr. Mr. Chaudhary further contended that on the date when the preferential right to purchase the land in dispute was decided, the petitioner Ram Sahai had land with him which Ram Kumar had no land in his name. It was during the pendency of the appeal before the Additional Commissioner that Ram Kumar transferred his land to Smt. Beni Bai in order to get right of purchase on the basis of being a landless person. Thus, according to him, the Act does not contemplate such a landless person for the purposes of giving a right to purchase land as a landless person. The petitioner's claim according to him was rightly rejected and there is no patent error of law in the impugned judgments. 5. An appeal is a continuation of proceedings in the suit. Hearing of an appeal under the procedural law is in the nature of rehearing and, therefore, the appellate court is entitled to take into account even facts and events which may have come into existence after the decree appealed against. Sec. 107 (2) of the Civil Procedure Code lays down that an appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein. An appeal to a court of appeal is by way of rehearing and the appellate court may make such orders as the court of first instance could have made. The appellate court is under a duty to consider the subsequent events and any changes in the law to determine the rights of the parties, as the hearing of the appeal is in effect the hearing of the suit itself. In the present case, it was a suit for division of holding in which a preliminary decree had been passed, but the final decree had not been passed and it was during the pendency of the suit for passing the final decree that the question as to which of the co-tenure holders had the preferential right of purchase in the land in question, was raised. The suit was, therefore, still pending and the rights of the parties, as affected by the subsequent events after the preliminary decree had been passed, should have been judged by the appellate court. The suit was, therefore, still pending and the rights of the parties, as affected by the subsequent events after the preliminary decree had been passed, should have been judged by the appellate court. This principle of law is well established, see Jadunath Rai v. Permeshwar Malik, A.I.R. 1940 P.C. 11, Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhary, A.I.R. 1941 F.C. 5, and Mohan Lal Chunnilal Kothari v. Tribhuwan Haribhai Tamboli, A.I.R. 1963 S.C. 368. 6. The view taken by the Board of Revenue and the Additional Commissioner that any subsequent events which may have taken place after the date of the suit, would not affect the status of the parties and their rights is, therefore, patently erroneous. The first appellate court as well as the second appellate court should have considered the question in the light of the subsequent events that had taken place to determine as to who had the preferential right of purchase. 7. It has been urged on behalf of the respondents that right of appeal is a statutory right created by the Act, the Act does not provide for an appeal against the order of the trial court determining preferential right of puchase of a co-tenure-holder, no appeal was maintainable and, therefore, the Additional Commissioner as well as the Board of Revenue could not exercise powers of an appellate court to take into account subsequent events. 8. In order to determine the question of maintainability of appeal we have to refer to various provisions of the Act. Sec. 331 of the Act provides that no Court other than a court mentioned in column 4 of Schedule II shall take cognizance of any suit, application or proceedings mentioned in column 3 of the said Schedule, except as provided by or under the Act. Sub-sec (3) of Section 331 makes provision for appeals. According to this Sub-section and appeal shall lie from any final order or decree passed by a court mentioned in column no. 4 in the proceedings mentioned in column 3 to court or authority, mentioned in column 5 thereof. Sub-sec. (3) of Section 331 confers right of appeal against an order or decree specified in the Schedule, while Sub-sec. (2) of Section 331 declares that except as provided in the Act, no appeal shall lie from an order or decree passed in any of the proceedings mentioned in column 3 of the said Schedule. Sub-sec. (3) of Section 331 confers right of appeal against an order or decree specified in the Schedule, while Sub-sec. (2) of Section 331 declares that except as provided in the Act, no appeal shall lie from an order or decree passed in any of the proceedings mentioned in column 3 of the said Schedule. The Legislature in enacting Sub-sec. (2) and (3) of Section 331 intended that no appeal should lie against any order of decree except against those mentioned in the Schedule. Schedule II of the Act makes provision for appeal against an order or decree of Asstt. Collector 1st class passed in a suit u/s 176 of the Act for division of holdings of a Bhumidhar or Sirdar. A second appeal has also been provided against the order or decree of first appellate court. The wordings of Sub-Sec. (3) of Section 331 are clear. It confers right of appeal not only against a decree but also against any final order provided that final order is passed in proceedings mentioned in Column 3 of the Second Schedule. An appeal would therefore lie against any final order passed in the proceedings for division of holdings under Section 176 of the Act. 9. Learned counsel for the respondent has however urged that an order passed under Section 179 of the Act offering to sell the holdings, in question to one co-tenure holder in preference to the other co-tenure-holder is not a final order. Final order is different from decree, and the Legislature in using the two terms in Sub-Sec. (3) of Section 331 has drawn distinction between a decree and final order. The legislative intent is clear that even though no decree is passed but if any final order is passed, appeal would lie to the authorities mentioned in the second Schedule, then the question arises what is a final order, it has not been defined in the Act. 10. The term `final order' has been the subject matter of interpretation by this Court and by other courts, which lay down principles for guidance for determining the nature and scope of a `final order'. In S. Kuppu Swami Rao v. Governor, A.I.R. 1949 F.C. 1 it was held that "final order" must be an order which finally determines the point in dispute and brings the case to an end. In S. Kuppu Swami Rao v. Governor, A.I.R. 1949 F.C. 1 it was held that "final order" must be an order which finally determines the point in dispute and brings the case to an end. To constitute a final order it is not sufficient merely to decide an important or even a vital issue in the case, but the decision must not keep the matter alive and provide for its trial in the ordinary way. These observations were made by the Federal Court while considering the question of maintainability of an appeal before it under Section 205 (1) of Government of India Act, 1935, which permitted an appeal to the Federal Court from any judgment, decree or final order of a High Court. In Savitri Devi v. Rajun Devi, A.I.R. 1961 Alld. 245, a full bench of this Court laid down the following three tests for determining the nature of a final order. (1) It should determine the proceedings. (2) It should determine the rights and liabilities of the parties, and (3) The determination of the rights and liabilities as envisaged in condition No. 2 should be on merits and should further be final and conclusive, so as to cover the entire range of substantive rights and liabilities which form the subject-matter of real controversy in the suit or proceeding. 11. The three tests laid down in Savitri Devi's case, A.I.R. 1961 Alld. 245 were further affirmed and followed in another full bench case of this Court in Shatrunji v. Azmat Azim Khan, A.I.R. 1967 Alld. 51. In Shatrunji's case, A.I.R. 1967 Alld. 51 the Full Bench referred to the case of Sri Shiromani Gurdwara Prabandhak Committee v. Sheoratan Dey Singh, A.I.R. 1955 S.C. 576. ln the case of Shiromani Gurdwara Prabandhah Committee A.I.R. 1955 S.C. 576 an appeal before the Supreme Court was directed against an order of remand. Their Lordship held that the order of remand was a final order as in their Lordship's opinion the order of remand had finally determined the rights of the parties with regard to the ownership of the property, though the proceedings had not finally terminated. The order of remand passed by the High Court was held to be final because it determined the substantive rights of the parties and the trial court to which the case was remanded was required only to implement the order of the High Court. The order of remand passed by the High Court was held to be final because it determined the substantive rights of the parties and the trial court to which the case was remanded was required only to implement the order of the High Court. Relying upon the decision of the Supreme Court in the case of Shiromani Gurdwara Committee the Full Bench of our Court in Shatrunji's case, A.I.R. 1967 Alld. 51 held that even though the proceedings may be kept alive, but the substantive rights and liabilities of the parties are decided the order would be final under Article 133 of the Constitution. It would, thus appear that the three tests laid down by this court in Savitri Devi's case, A.I.R. 1961 Alld. 245 still hold the field and in order to determine the question whether the order of the trial court determining the prefential right of sale of co-tenure-holders is final, we have to apply the three tests laid down by the Full Bench. 12. Under the Zamindari Abolition and Land Reforms Act when a suit under Section 176 is filed for the division of holdings, it is open to the Court to determine the shares and partition the holdings according to the shares, but in case it is found that the holding in question does not exceed 3? acres, the Court shall not divide the holding instead it shall direct the sale of the holding and distribute the proceeds thereof to the shares of co-tenure holders already determined by the Court. After an order for sale has been made under Sec178 of the Act, the Court has to determine the valuation of the holdings and thereafter it is required to offer the holdings for sale to one of the co-tenure-holders according to the order of preference as prescribed in Rule 159-B. If the co-tenure-holder who is determined to have a preferential right of purchase, refuses to purchase the land, the Court has power to offer the holding to such of the co-tenure-holders who offer to pay highest price above the price ascertained under Section 179 of the Act. After the sale nothing remains to be done in the suit and the money so obtained is to be distributed among the co-tenure-holders according to the shares which are determined earlier. After the sale nothing remains to be done in the suit and the money so obtained is to be distributed among the co-tenure-holders according to the shares which are determined earlier. In the present case, the trial court determined the shares and a preliminary decree was passed and there remains, therefore, no dispute about the shares. As already noted since the land in dispute could not be divided as it was less than the prescribed area, the trial court determined the valuation of the land and it thereafter determined preferential right of purchase of co-tenure-holders. The Trial court held Ram Kumar to have a preferential right of purchase and it, therefore, offered the sale of the holdings in question to him, who accepted the offer and deposited the sale money on 8th May, 1967. After the deposit of the sale money there remained nothing to be determined by the trial court. The only thing left was to distribute the sale money amongst the co-tenure holders according to the shares which the trial court had already determined earlier. Thus, it would appear that the trial court determined the substantive rights of the parties at the stage when it decided the question of shares of each co-tenure-holder, and then again, it decided the substantive rights of the parties when it determined the question of preferential right of the purchase of co-tenure-holders and offered the holdings for sale to one of them. Applying the three tests laid down by the Full Bench of this Court in Savitri Devi's case, A.I.R. 1961 Alld. 245 and in Shatrunji's case, A.I.R. 1967 Alld. 51, the order of the trial court was, in my opinion, a final order and the petitioner was entitled to file an appeal against it. The respondent's contention that it was not a final order and no appeal lay against the order of the trial court, is without any force. In my opinion, the petitioner's appeal before the Additional Commissioner and the Board of Revenue was maintainable under the provisions of the Act and the appellate courts were duly bound to consider the subsequent events which may have taken place after the filing of the appeal. 13. Under these circumstances I allow the writ petition and quash the impugned orders of Board of Revenue and the Additional Commissioner, Jhansi Division. 13. Under these circumstances I allow the writ petition and quash the impugned orders of Board of Revenue and the Additional Commissioner, Jhansi Division. The petitioner's appeal shall be heard and decided in accordance with the observations made in this judgment. In the circumstances of the case I make no order to costs.