JUDGMENT H.N. Agarwal, Member. - Nature of the case u/s 229-B/209 of the U.P.Z.A. and L.R. Act and have gone though the records. Briefly stated the casts are as follows: One Bhagwati filed to suits for the declaration of rights in respect of certain Bhumidhari and Sir land and ejectment of Sada Sukh defendant whom she called a trespasser. During the pendency of this suit Smt. Bhagwati died and Smt. Ram Pyari wife of Swamidin Sharma applied for the substitution claiming to be her daughter and heir. Sada Sukh contested the substitution application. The trial court held that Smt. Ram Pyari was not the heir that Smt. Ram Pyari was not the heir of Smt. Bhagwati deceased u/s 171 of U.P.Z.A. and L.R. Act. Smt. Ram pyari went up on appeal and the lower appellate court set side the order of the trial court in both the cases and remanded them for fresh decision. Sada Sukh has now come up in revision against the order of the lower appellate court. 2. The main contention of the Id. counsel for the revisionist is that the lower appellate court had no jurisdiction to entertain the appeal against the impugned order of the trial court as no appeal lay from the said order. In support of this argument he has referred Venkate Krishna v. Krishna A.I.R. 1926 Madras P. 586 F.B. The Id. counsel for the O.P. has on the other hand cited Radhey Lal v. Smt. Kalawati 1973 A.L.J. p. 257. In this case the Id. single Judge of the Allahabad High court as follows:- "Learned counsel for the applicants has contended that the court below exercised its jurisdiction not vested in it by law because no appeal was maintainable against the order of the trial court. There is no force in this contention. Order 43, Rule 1(k) provides that an appeal shall lie form an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit. Where the court refuses the application for substitution, in effect is declares the suit as abated, because the effect of the order is nothing else than what will follow it no application for substitution was made by he heir within the time limited by law. Rule 3(2) of order XXII will thus be attracted and the suit shall be deemed to stand abated. Rule 3(2) of order XXII will thus be attracted and the suit shall be deemed to stand abated. As the effect of the order passed by the learned Munsif, in substance was to declare the suit abated, appeal was maintainable." 3. A similar view has been taken by the Board of Revenue in Baikunth Tewari v. Shri Bhajan Ahir 1957 A.L.J. (revenue) p. 28 in which the Id. single Member has observed as follows:- "Where the trial court ordered a suit to have abated because of a decree having been passed against a dead person whose legal representatives were not substituted within limitation, the order is in effect an order of the refusal to set aside abatement under order XXII. Commissioner under Sec.271 (2), U.P. Act. 4. The facts of the present case are similar to the fact as of the above case. There is no doubt to my mind that an order of refusal to hold a party as an heir in substitution proceedings on the death of a party to the suit is appealable. The Id. Addl. Commissioner did not commit any error of jurisdiction in entertaining the appeals. 5. The next point argued by the Id. counsel for the revisionist is that the lower appellate court acted illegally and with material irregularity in the admitting documentary evidence without any valid and legal excuse. The documentary evidence in question in the original 'will' shown to be executed on June 24, 1966 by one Dilgar Prasad s/o Bharosa in favour of his sister Smt. Bhagwati widow of Sita Ram. It stated in this 'will' that the only issue of Smt. Bhagwati is her daughter Smt. Pyari wife of Swamidin. Smt. Ram Pyari had filed this document before the lower appellate court because she was not given any opportunity to file her evidence by the trial cour and her Id. additional Commissioner has ordered that in the interest of justice h deemed it proper to admit the proper subject to payment of Rs. 15/- as costs. Since the trial court has erroneously failed to give any opportunity to Smt. Pyari to produce her evidence on the question of heirship the Id. Addl. Commissioner did not commit any illegality or material irregularity in admitting the document purporting to be the 'will' in evidence. 6. The 3rd contention of the Id. 15/- as costs. Since the trial court has erroneously failed to give any opportunity to Smt. Pyari to produce her evidence on the question of heirship the Id. Addl. Commissioner did not commit any illegality or material irregularity in admitting the document purporting to be the 'will' in evidence. 6. The 3rd contention of the Id. counsel for the revisionist is that the document is question is that result of after-thought which was fabricated at the appellate state to get over the bar of law of succession and that the will in respect of sirdari land was inoperative in any case. Whether the 'will' is genuine or forged, whether it is valid or invalid, or whether Smt. Ram Pyari would be entitled to be the heir of Smt. Bhagwati deceased the person alleging to be the heir of the deceased plaintiff would be entitle to be the heir of the deceased plaintiff on the basis of the 'will' are question which will be determined by the trial court. The Id. Commissioner has remanded the suits to the trial court for a fresh decision after allowing the parties to produce evidence in proof of and against the 'will'. It therefore, cannot be said that any miscarriage of justice has been caused by the remand order of the Id. Addl. Commissioner. 7. The result is that there is no force in the present revisions which are hereby dismissed. This order will govern both the connected revisions nos. 75 and 76(z) of 1973-74/Banda.