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. 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 merit a large number of decisions beginning from Badam v. Imrat, (1188) All W N 146. Sohan Lal v. Azizunnisa (1884) ILR 7 All 136, Girdhari Lal v. Crawford. 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 merit a large number of decisions beginning from Badam v. Imrat, (1188) All W N 146. Sohan Lal v. Azizunnisa (1884) ILR 7 All 136, Girdhari Lal v. Crawford. 1886) ILR 9 All 147, Ram Narain v. Bhawandin (1882) All N 104, Kaluvaroya Pillai v. Ganesa Pandithan, AIR 1969 Mad 248 . New India Insurance Co. Ltd. v. T. K. Nanjunda Setty and Sons, AIR 1964 Mys 147 were cited. In Badam (supra) reported in 1981 ILR 3 All 675 (F B), also it was held by this court that in an appeal from Order of remand the appellate court can examine not Only the correctness of the impugned order but also whether the decision on preliminary point was correct or not. When this was pressed in service in (1884) ILR 7 All 136 and the bench was asked to hear and decide the appeal on merits which arose out of remand order the bench declined to do so as it would amount to converting a second appellate court into a court of first appeal. The bench did not hold there was no power. In Hasan Ali v. Siraj Husain, (1894) ILR 16 All 252 it was held that it was competent for High Court in an appeal from remand to pass a decree dismissing the suit. Similar view was taken in Sankaran v. Raman Kutti, (1896) ILR 20 Mad 152. In Mahadeu v. Kalloo, AIR 1923 All 603 (1), the bench while hearing an appeal against order of remand decided the suit on merits. 7. The powers for a second appellate court are contained in S. 103 of the Code of Civil Procedure. Before 1976 a second appellate court could on the evidence on record determine any issue of fact necessary for the disposal of appeal. After 1976 the Second appellate court may if the evidence on record is sufficient to determine `any issue' necessary for the disposal of the appeal which has not been determined by the lower appellate court or both by the Court of first instance or lower appellate court or which has been wrongly determined. After 1976 the Second appellate court may if the evidence on record is sufficient to determine `any issue' necessary for the disposal of the appeal which has not been determined by the lower appellate court or both by the Court of first instance or lower appellate court or which has been wrongly determined. This section falls in the chapter relating to appeals from appellate decree but the same procedure and power is conferred on a court hearing appeal from final orders passed by the court below by virtue of S. 108 of Civil Procedure Code. To say therefore that the Board had no power to decide the question of fact in second appeal is not conduct. It is true that normally a second appellate court should not go beyond considering legality and propriety of the order of remand but the legislature has conferred necessary powers to decide even those questions which were not decided by the court below. 8. Before examining the question whether any argument was advanced on merits and whether the learned counsel for petitioner was heard on it it is expedient to decide whether the decision of the Board that respondent acquired rights of Sirdar can he sustained in law as on the former there was a lot of controversy and there are allegations and counter allegations supported by affidavit. Admittedly one Smt. Punni was tenant. The respondent No. 1 claims to he her lessee. The petitioners are transferees from one Chatter Sen, who in his turn had purchased from Saidullah who was the first transferee from Punni. When petitioner purchased it from Chattar Sen a dispute arose and as there was apprehension of breach of peace the property was attached under S. 145 Cr. P.C. It was released in favour of petitioner. This necessitated filing of suit under S. 229B. 9. The Board of Revenue found that the respondent became Sirdar under S. 165 of the Act as he continued in possession since the land was let out by Smt. Punni and the letting was continued even by transferees. Even assuming it to be so it was not sufficient in law to hold that the lease was in contravention of Sections 156 and 157 of the Act and the lessee was not possessed of more than twelve and half acres. Even assuming it to be so it was not sufficient in law to hold that the lease was in contravention of Sections 156 and 157 of the Act and the lessee was not possessed of more than twelve and half acres. In absence of any finding that Saidullah and Chatter were Bhumidhars who were not entitled to let out and the opposite party along with his family was not possessed of less than 12.5 acres the finding of Board cannot be maintained. It was necessary for the Board to record finding on these vital aspects. Saidullah may he advocate or Chattar Sen may be able bodied person. But there has to be a finding in this regard. 10. There has been an unpleasant dispute between learned counsel for parties whether the appeal was heard on merits or not. Affidavits have been filed in this regard. It has also been pointed out from the Board's order that it does not appear that the appellant or respondents anywhere raised any argument on meirts. In view of what has been stated in preceding paragraphs it is not worth going into this question at all. 11. It having been found that finding recorded by Board of Revenue on merits cannot be maintained the question is what relief should he granted to petitioner. By mere quashing of the order of Board of Revenue the order of Additional Commissioner is restored which obviously was erroneous. This was not contested by petitioner even. It is expedient therefore to quash the finding recorded by Board of Revenue on merits. The finding that the Additional Commissioner's order was erroneous is maintained. 12. In the result this petition succeeds and is allowed in part. The order of Board of Revenue setting aside, 'judgment and decree of the lower appellate court' is maintained. But the order that plaintiff's suit stands decreed with costs all through and he is declared to be Sirdar now Bhumidhar with transferable rights, in possession of the disputed land and the judgment and decree of the trial court is hereby accordingly confirmed, is quashed'. The Additional Commissioner shall now decide the appeal on merits. It is made clear that any observation made on merits was to demonstrate the error in the order of Board. The Additional Commissioner shall decide the appeal irrespective of any observation. Then shall he no order as to costs.