JUDGMENT R. B. Misra, J. - The present petition under Art. 226 of the Constitution challenges the order of the Board of Revenue dated 26th of August 1972. The facts leading up to the present petition are as follows :- Mirza Kishwar Beg, petitioner No. 1, filed a suit under Sec. 229-B of the U. P. Zamindari Abolition and Land Reforms Act in the court of the Sub-Divisional Officer, Moradabad against the State of Uttar Pradesh, Nagar Palika and Zila Prishad, Moradabad. It appears that Smt. Nazeer Jahan Begum, petitioner No. 2 was later on impleaded on her own application as defendant No. 4. According to the plaintiff the land in suit was the grove of his predecessor-in-interest and the same became his bhumidhari after the date of vesting but by mistake the land in dispute was recorded as graveyard under the management of the Municipal Board and the District Board, Moradabad of which he had no knowledge and it was only on 30th of January, 1969 that he came to know about this entry. The State of Uttar Pradesh contested the suit alleging that the Zamindari abolition had not taken place in the town in question and as such the suit under Sec. 229-B of the Zamindari Abolition and Land Reforms Act was not maintainable; that the land in suit belonged to the State and no bhumidhari or sirdari right could accrue in it to any one, that the land in dispute was QABRISTAN and the suit was not maintainable on this ground as well; that the plaintiff was not in possession and that the suit was barred under Sec. 34(5) of the U. P. Land Revenue Act. The Nagar Palika, Moradabad also contested the suit substantially on the same grounds. Smt. Nazeer Jahan Begum, petitioner No. 2 who was arrayed as defendant No. 4 in that suit, filed a separate written statement and she claimed to be the heir of Mirza Farooq Beg. According to her the land, in suit was the graveyard of Mirza Farooq Beg. 2. The Sub-Divisional Officer decreed the suit by his order dated 30th of June, 1970. The plaintiff was found to be bhumidhar of the disputed plot to the extent of share and Smt. Nazeer Jahan Begum, defendant No. 4, was held to be the bhumidhar of the remaining share. The order of the Sub-Divisional Officer gave rise to two appeals. 2. The Sub-Divisional Officer decreed the suit by his order dated 30th of June, 1970. The plaintiff was found to be bhumidhar of the disputed plot to the extent of share and Smt. Nazeer Jahan Begum, defendant No. 4, was held to be the bhumidhar of the remaining share. The order of the Sub-Divisional Officer gave rise to two appeals. Appeal No. 30 was filed by Abdul Kadir and Mashooq Ali who were no parties to the suit before the trial court while Appeal No. 123 was filed by the O. P. State, Nagar Palika and Zila Parishad, Moradabad. Both the appeals were barred by time. The appellants, therefore, filed an application under Sec. 5 of the Limitation Act supported by an affidavit for the condonation of delay. The Additional Commissioner dismissed Appeal No. 39 filed by Abdul Kadir and Mashooq Ali on the ground that the same was not maintainable in as much as they were no parties to the original suit and, therefore, they had no locusstandi to file the appeal and the judgment and decree passed by the Sub-Divisional Officer could not bind them. They could agitate their rights by a properly instituted suit. Appeal No. 123 filed by the U. P. State and others was dismissed on the ground of limitation as in the opinion of the Additional Commissioner the cause shown for the condonation of delay was not sufficient. Against the judgment and decree of the Additional Commissioner, the State of Uttar Pradesh, Zila Parishad and Municipal Board, Moradabad filed second appeal. The second appeal was dismissed by the Board, of Revenue by its order dated 26-8-1972. The Board, however, has sought to proceed under Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act by invoking his suo moto revisional powers, The present petition has been filed by Mirza Kishwar Beg, the plaintiff and Smt. Nazeer Jahan Begum, defendant No. 4. 3. Sri Rajeshwari Prasad assisted by Sri H. S. Joshi and Sri Mohammad Mosin contended that the Board of Revenue by dismissing the second appeal affirmed the judgment and decree of the courts below and the judgment of the courts below merged into the judgment and decree of the Board of Revenue. The Board of Revenue thereafter has no power to exercise the revisional jurisdiction under See. 333 of the U. P. Zamindari Abolition and Land Reforms Act. The Board of Revenue thereafter has no power to exercise the revisional jurisdiction under See. 333 of the U. P. Zamindari Abolition and Land Reforms Act. It was further contended that the respondents, having filed the appeal against the judgment and decree of the trial court, could not invoke the revisional jurisdiction of the Board of Revenue under Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act. I find considerable force in either of the two contentions. The Board of Revenue in para 3 of its judgment observed as follows :- "I have gone through the record of the case and have heard the learned counsel for both the sides. The application seeking relief under Sec. 5 of Indian Limitation Act which was filed along with the second appeal is based simply on questions of fact. No legal issue is involved, in this prayer nor has the Court of First Appeal committed any error of law, in dismissing the First Appeal as time barred, I, therefore, do not find any force in the second appeal which is hereby dismissed." It is, therefore, quite evident that the Board of Revenue dismissed the appeal filed by the State of Uttar Pradesh and confirmed the order of the Additional Commissioner. The judgment and decree of the first and second courts thus merged into they judgment and decree of the Board of Revenue. I find support for this view in Kanti Saran v. L. Babu Ram, A.I.R. 1974 Alld. 302. In that case this Court dismissed the revision challenging the order of the lower appellate court under Sec. 115 of the Code of Civil Procedure after hearing both the parties; with the result that the order of the lower appellate court merged in the order of this Court but the order was again challenged by filing a writ petition under Sec. 226 of the Constitution. It was held by a Division Bench of this Court that it was incompetent for the party to challenge the same by way of writ petition. 4. The order of the first appellate court having merged into the order of the Board of Revenue, the judgment and decree of the first appellate court has no independent existence and it could not be revised by the Board of Revenue. 4. The order of the first appellate court having merged into the order of the Board of Revenue, the judgment and decree of the first appellate court has no independent existence and it could not be revised by the Board of Revenue. There is yet another reason why the Board cannot invoke its revisional jurisdiction under Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act suo molo. Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act provides :- "The Board may call for the record of any suit or proceeding decided by any subordinate court in which no appeal lies, or where appeal lies but has not been preferred and if, such subordinate court appears - (a) to have exercised a jurisdiction not vested in it in law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of jurisdiction illegally or with material irregularity, the Board may pass such order in the case as it thinks fit." 5. A bare reading of this section clearly indicates that the Board can exercise its powers only in a case where no appeal lies or if it lies it has not been preferred. In the case in hand appeal lay and indeed, the appeal was filed before the first appellate court. Of course the appeal was filed not within time but after the expiry of the period of limitation. The State, therefore, applied under Sec. 5 of the Indian Limitation Act for condonation of delay but as the cause shown was not sufficient in the opinion of the first appellate court, the appeal was dismissed on the ground of limitation. In this view of the matter the State had already preferred an appeal and in such a case the revisional power could not be invoked by the Board either at the instance of a party or by the Board itself suo moto. 6. Sri R. B. Mehrotra appearing for the State and the Advocate General appearing for the Nagar Palika, Moradabad strenuously contended that the appeal filed by the defendants before the Additional Commissioner after the expiry of the period of limitation tantamounts to preferring no appeal and, therefore, the Board of Revenue was fully competent to exercise its power under Sec. 333, U. P. Z. A. and L. R. Act. On their behalf reliance was placed on Ram Baksh v. Mt. Rajeshwari Kunwar, A.I.R. 1948 Alld. 213. While dealing with review under Order 47, Rule 1, Civil Procedure Code, a Division Bench of this Court observed as follows :- "When once a decree or order is affirmed on appeal by a superior Court, it is not open to the lower Court which passed the decree to entertain an application for review. The test undoubtedly is whether the decree passed by the superior Court is such that the decree passed by the lower Court has been merged in it. Once the decree of the Court of first instance merges in the decree passed by the appellate court, it ceases to exist and the Court of first instance cannot therefore, alter or amend it. But, where an appeal is dismissed on the ground that it was incompetent as there was no provision in law for the appeal, the case falls within the purview of O. 47, R. 1 (i) (b) and the above principle has no application." 7. The facts of the reported case are entirely different and have no application to the facts of the present case. In the reported case there was no provision for appeal and an appeal is always the creature of Statute. In the absence of any provision for the appeal, the appeal obviously was incompetent. Therefore, the mere filing of the appeal would not amount to the preferment of appeal when no appeal lay. 8. Next reliance was placed on Ram Prasad v. Asha Ram, A.I.R. 1321 Alld. 197. This case is also distinguishable inasmuch as in this case appeal lay and the appeal indeed was filed but it was later on withdrawn. On the withdrawal of the appeal it became a clean slate and there was no trace of any appeal. The withdrawal of the appeal will, therefore, tantamount to the non-preferment of the appeal. 9. Sri Rajeshwari Prasad appearing for the petitioners on the other hand placed reliance on Asshoy Kumar Hundi v. Chander Mohan Chathati, 16 Cal. 250. On the withdrawal of the appeal it became a clean slate and there was no trace of any appeal. The withdrawal of the appeal will, therefore, tantamount to the non-preferment of the appeal. 9. Sri Rajeshwari Prasad appearing for the petitioners on the other hand placed reliance on Asshoy Kumar Hundi v. Chander Mohan Chathati, 16 Cal. 250. A Division Bench of the Calcutta High Court had the occasion to consider the term "Appeal presented" under Art. 179, clause 2 of the Limitation Act and they held as follows :- "The words "appeal presented" in the Limitation Act, 1877, mean an appeal presented in the manner prescribed in Sec. 541 of the Code of Civil Procedure. The words "where there has been an appeal", in Art. 179, Cl. 2, of Schedule II, of the Limitation Act 1877, mean where a memorandum of appeal has been presented in Court." 10. Sec. 441 of the Code of Civil Procedure now corresponds to Order 41, Rule 1 of the present Code of Civil Procedure. Although the presentation of appeal has not been defined in the Code of Civil procedure it comes into existence within the meaning of Order 41, Rule 1 Civil Procedure Code. 11. Next reliance was placed on Nagendra Nath Dey v. Suresh Chandra Dey, A.I.R. 1932 P.C. 165. While dealing with term "appeal" the Privy Council laid down the following proposition :- "There is no definition of appeal in the Civil P. C., but there is no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or in competent." 12. Sri S. P. Gupta appearing for some of the transferees has cited Messrs Mela Ram and Sons v. Commissioner of Income-tax, Punjab, A.I.R. 1956 S.C. 367. The Supreme Court dealing with an appeal which was barred by time observed as follows :- "It is well established that rules of limitation pertain to the domain of adjectival law and that they operate only to bar the remedy but not to extinguish the right. The Supreme Court dealing with an appeal which was barred by time observed as follows :- "It is well established that rules of limitation pertain to the domain of adjectival law and that they operate only to bar the remedy but not to extinguish the right. An appeal preferred in accordance with Sec. 30(1) must, therefore, be an appeal in the eye of law though having been presented beyond the period mentioned in Sec. 30(2), it is liable to be dismissed in limine. Any application by a party to an appellate Court, asking it to set aside or revise a decision of a sub- ordinate Court, is an appeal within the ordinary acceptation of the term. It is no less an appeal because it is irregular or incompetent. In view of this definition, an appeal under Sec. 30(1), though presented out of time is an appeal and an order dismissing it as time barred is one passed in appeal." 13. In view of these authorities, it must be held that the appeal filed by the respondent though beyond the expiry of the period of limitation, will be taken to be an appeal preferred within the meaning of Sec. 3 of the U. P. Zamindari Abolition and Land Reforms Act. In this view of the matter it was not open to the Board of Revenue to revise the order of the Sub-Divisional Officer. 14. The Advocate General next contended that assuming that the Board of Revenue has no power to revise the order passed by the Sub-Divisional Officer on the technical ground that the State had already preferred an appeal against the order of the Sub-Divisional Officer, this Court would not be justified in interfering with the order of the Board of Revenue as a grave injustice has been done to the State. He referred to the counter-affidavit filed by the State to contend that the plot in dispute is a very valuable plot and just after the decision of the case by the Sub-Divisional Officer, a part of the same has been purchased by a relation of the Sub-Divisional Officer at a very low price and there are certain other allegations made against the Sub-Divisional Officer about the decision of the case in a slipshod manner without deciding the various questions raised by the State in its written statement. One of the points, which according to the Advocate General, left undecided was that the suit was not maintainable as the Zamindari of the place has not been abolished. This has been demonstrated to be incorrect by the counsel for the petitioners when he showed the notification whereby the Zamindari of the place in question has been abolished and, therefore, the suit filed by the petitioners was a competent suit. 15. It was open to the respondents to have made all these allegations in their appeal and then the appellate court would have recorded a finding on these pleas. This Court cannot enter into the new pleas sought to be raised by the State in the counter-affidavit. The allegations in this case are mere against the Sub-Divisional Officer than against the petitioners. It was open to the State Government to have filed an appeal within time for the redress of ail its grievances by challenging the order of the Sub-Divisional Officer on all possible grounds, but the State did not chose to file the appeal within time and was not able to explain the delay. Now there is no help. 16. Sri Kacker next contended that no writ can be issued in favour of the petitioners unless the petitioners are able to show that grave injustice has been done to them. In support of his contention he cited a number of authorities and it is not necessary to mention all and rest content by citing only a few of them. He cited Pooran Singh v. The Additional Commissioner, Agra, 1957 A.L.J. 193. While dealing with the scope of Art. 226 of the Constitution in issuing a writ of certiorari, a Division bench of this Court laid down as follows:- "The mere fact that an order is without jurisdiction or that there is an error apparent on the fact of the record is not sufficient to justify the issue of a writ. In addition to that it must be established that the order has resulted in manifest injustice. It is therefore open to the High Court to refuse to issue a writ if it feels that if the writ prayed for is issued." It will clearly effectuate an injustice in the case. In addition to that it must be established that the order has resulted in manifest injustice. It is therefore open to the High Court to refuse to issue a writ if it feels that if the writ prayed for is issued." It will clearly effectuate an injustice in the case. Even in the exercise of its ordinary revisionary powers the High Court generally refuses to set aside a wrong order if the effect is to restore another illegal order." 17. Next reliance was placed on Parahu v. Deputy Director of Consolidation, U.P. at Gorakhpur, 1964 A.L.J. 240. In this case a Division Bench refused to issue a writ of certiorari even though the order passed by the subordinate authorities was in excess of jurisdiction on the ground that no substantial injustice done to the petitioner had been made out. It is now well settled that a writ of certiorari is issued not as a matter of course. It is issued only when the petitioner is able to establish that grave injustice has been done to him besides showing that the impugned order is illegal or without jurisdiction. These cases are, however, not applicable to the present case. In the present case the petitioner prayed for the issue of a writ of prohibition on the ground that the Board of Revenue has no jurisdiction to proceed under Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act. Different considerations arise while issuing a writ of prohibition. In Raja Sriniwas Prasad Singh v. S.D.O., Mirzapur, A.I.R. 1962 Alld. 590, a Division Bench of this Court relying on Bengal Immunity Co. Ltd. v. State of Bihar, A.I.R. 1955 S.C. 661, pointed out the distinction between the writ of certiorari and that of prohibition and quoted the following observation of the Supreme Court :- "The existence of another remedy is a very material circumstance to be taken into account when the Court is called upon to issue a writ of certiorari but wholly different considerations arise when the writ asked for is prohibition. Writ of prohibition is issued whenever a subordinate Court or Tribunal usurps jurisdiction which does not belong to it, and when that has been shown the issue of the writ though not of course, is of right and not discretionary." Reliance was also placed by the Division Bench on a passage in Halsbury' s Laws of England, third Edn. Writ of prohibition is issued whenever a subordinate Court or Tribunal usurps jurisdiction which does not belong to it, and when that has been shown the issue of the writ though not of course, is of right and not discretionary." Reliance was also placed by the Division Bench on a passage in Halsbury' s Laws of England, third Edn. Vol. II at page 115 paragraph 214 where is laid down :- "Where the defect of jurisdiction is apparent on the face of the proceedings and the application is made by a party, the order goes as of right and is not a matter of discretion. Smallness of the matter in dispute and delay on the part of the applicant are not in themselves grounds, for a refusal." Again at page 117, paragraph 219, it was further said :- "Prohibition may be applied for as soon as the absolute absence of jurisdiction is apparent on the record of the proceedings of the inferior court, without the question of jurisdiction being raised by plea or otherwise in that court." 18. Again in Khageshwar v. Hosfram, A.I.R. 1966, Alld. 191, dealing with a writ of prohibition under Art. 226, a Division. Bench under the provisions of U. P. Consolidation of Holdings Act observed as under :- "Therefore, the appeal being incompetent writ of prohibition sought to be issued. The matter is not at the discretion of the High Court. If the Court found that no appeal lay from the order, it was bound to prohibit the Settlement Officer from proceeding with the appeal. In no circumstances can an order without jurisdiction be allowed to be passed, a as nothing is to be gained by it." 19. Thus once this Court comes to the conclusion that the Board of Revenue had no jurisdiction to exercise the power under Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act, it has no option but to issue a writ prohibiting the Board of Revenue from exercising the power under Sec. 333 of U. P. Zamindari Abolition and Land Reforms Act. 20. For the foregoing discussions, it is held that the Board of Revenue having dismissed the second appeal has no jurisdiction to exercise its revisional power suo motu. 20. For the foregoing discussions, it is held that the Board of Revenue having dismissed the second appeal has no jurisdiction to exercise its revisional power suo motu. The petition is accordingly, allowed and a writ of prohibition is issued against the Board of Revenue prohibiting it from exercising its revisional powers under Sec. 333 of the U. P. Zamindari Abolition and Land Reforms Act. In the circumstances of the case, the parties shall bear their own costs.