JUDGMENT Kaushal Kishore, Member - This second appeal against the judgment and order dated 22.4.1976 by the learned Additional Commissioner, Faizabad Division, Faizabad, arising out of the proceedings under section 134 of the U.P.Z.A. and L.R. Act decided on 17.4.1975 by the learned trial court, has been filed by Ram Dayal son of Rameshwar applicant in the said proceedings. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The proceedings for issue of sanad bhumidhari started on the application of Ramesh war dated 27.12.1974 along with the deposit of 20 times rent. Smt. Mana alleging to be the widow of Raghubar predeceased son of Ramesh war alleged that Rameshwar had already expired on 24.12.1974 and that certain persons had fraudulently deposited the amount in support of a fictitious sale-deed. The present appellant Ram Dayal is the son of Rameshwar who supported the application of Rameshwar saying that Rameshwar had expired on 2.1.1975. The learned trial court vide its order dated 17.4.1975 relied on the objection of Smt. Mana and deposited the proceedings without any order for issue of sanad bhumidhari. Thereafter Rain Dayal filed the first appeal which was filed with a delay of 136 days and the delay was explained on the basis of his illness for which an affidavit was filed. A counter-affidavit was filed by Smt. Mana. The learned Additional Commissioner decided that the reasons for delay were not satisfactory and the first appeal was dismissed as time-barred on 22.4.1976. 4. The learned counsel for the appellant has argued that this second appeal renders the proceedings as pending and in terms of section 73 (1) of the Amendment Act of 1977 the appeal along with the proceedings should abate. The learned counsel for the respondent argued that the first appeal was not competent and the condonation application was dismissed hence this second appeal is also not competent and abatement cannot be ordered. The learned counsel for the appellant further argued that the first appeal had been admitted, therefore, for whatever reason it was dismissed, the second appeal must be deemed competent. 5. The learned counsel for the appellant further argued that the first appeal had been admitted, therefore, for whatever reason it was dismissed, the second appeal must be deemed competent. 5. Apart from the above reasoning of the learned counsel for the appellant, delay in filing the first appeal does not take away the right of the second appeal which, no doubt, is based on the ground that the delay should have been condoned by the learned first appellate court and the first appeal should have been decided on merits. The learned trial court has deposited the case only on the ground that since in any case the applicant was dead, no sanad bhumidhari could be issued in favour of a dead person. The trial court did not decide the question as to when Rameshwar had expired and only took the other course in view of a doubt being created. This amounts to failure to exercise jurisdiction vested in the learned trial court and the learned first appellate court even though the appeal was held to be time barred, should have converted the appeal into revision and decided the same. The same is the position of this second appeal which in view of the facts and circumstances, it is felt, must be decided as a revision. In spite of the second appeal being competent and the proceedings being deemed pending, even the converted revision is fit one to be allowed in the circumstances of the case. In any case, the pendency of the proceedings is undoubtedly established and for the purpose of application of section 73 (1) of the Amendment Act VIII of 1977, the necessary requirement is fulfilled and there is no need to go into the merits of the case. Accordingly, this second appeal/revision along with the proceedings is abated under section 73 (1) of the Amendment Act VIII of 1977.