JUDGMENT H.N. Srivastava, M. - This is a second appeal against the order of the learned Additional Commissioner Varanasi Division dated 10-10-1973 allowing the appeal against the order of the learned trial court dated 12-3-73 in a suit under section 209 of the UPZA & UR Act. 2. The case has a chequered history. The present appellant Mst. Manraji filed a suit under section 209 of the Act on 17-3-1966 seeking ejectment of the respondents from the disputed plot. It was contended that Barku and others defendants have made unauthorised construction on the disputed plots. A prayer was made for their ejectment. The suit was contested and it was claimed that the plots constituted their old abadi. The case was decreed in favour of the appellant plaintiff Mst. Manraji on 24-9-1966. In appeal the learned Additional Commissioner by his order dated 12-4-1967 remanded the case for proceeding with it afresh. The suit was dismissed by the learned trial court on 20-3-1970 as not maintainable. The learned trial court observed that the relief sought by the plaintiff cannot be given by a revenue court as it was not possible to get the defendants ejected and the constructions, if any, demolished in proceeding u/s 209 of the Act. Earlier to the above order, a commission was issued in order to ascertain if the disputed plot consists of any construction as contended by the plaintiff. The report of the commission was confirmed by the learned trial court on 14-5-1969. The plaintiff went in appeal against the order of the learned trial court dated 20-3-1970 before the learned Additional Commissioner. The latter allowed the appeal by his order dated 7-10-1971. We gave the following finding : "Avar Nyalaya ka Adesh Purtaya Galat hai Vadni Ne Kewal Yahi uprain Mangi ki Prativadigarh nikshit Kiya Jaya. Aisa upram Antergat dhara 209 Uttar Pradesh Adhiniyam year 1951 ke Antargat di Ja Sakti Ha Aur Aisa Vad ke Nistaran ka Adhikar Kewal Rajaswa Nyalaya Ko hi Ha Vad patra dekhne se spasth Ha Ke 20-12-65 Ke Purv is Bhumi Me Koi Abadi Nahi thi. Yadi Ek Atiyari Anadhikar pravesh karne ke Paschat Krishi Bhumi Par Koi Emarat Bana Leta Ha to vah dhara 209 Ke Antargat Niskasit Kiya ja Sakta Ha. Yadi Ek Atiyari Anadhikar pravesh karne ke Paschat Krishi Bhumi Par Koi Emarat Bana Leta Ha to vah dhara 209 Ke Antargat Niskasit Kiya ja Sakta Ha. Yah dosri baat tha ki yadi Aisa Bhumi kabhi krishi Bhumi Nahi Rahi hai to Aisa Abhyukti Rakhi Jati Hai to us par parganadhikari ki uppati lena we Pashchat vad Nirest Ho sakti tha is samay Jaise sthiti hai Avar Nyalaya ka Pura Astchatra us vad ke Nirastkaran ka tha". 3. On remand the case was tried on merits by the learned trial court. By order dated 12-3-1973, the plaintiffs suit was decreed, the defendants were ordered to be ejected from the plots in dispute. Against that order, the defendants went in appeal before the learned Additional Commissioner. The later has set aside the order of the trial court by his order dated 10-10-1973. We referred to two applications in the above order observing that the trial court has erred in passing the order without disposing of those applications. We also inferred that since a commission of experts was appointed a second time by the order of the trial court dated 15-1-1970 the earlier report of the Commissioner should be taken as cancelled. 4. Second appeal has been filed against the above order of the learned Additional Commissioner. I have heard the learned counsel for the parties and have also perused the record. The learned counsel for the appellant has argued that the Commissioner whose report was confirmed on 14-5-1969 by the trial court, had given a clear report regarding the location of the plot and the constructions thereon. It was pointed out that the applications referred to by the learned Additional Commissioner have been satisfactorily disposed of by the trial court, that in any case the respondents bad not pressed or raised any argument in respect of those applications at any stage before the trial court while the case remained pending for a long time. It was also argued that since the report of the Commissioner had already been confirmed, no justification for appointing another commission existed. Accordingly, it was pointed out that the learned Additional Commissioner has taken note of certain facts which were neither pressed at any stage nor have they any importance and has illegally set aside the order of the trial court. Accordingly, it was pointed out that the learned Additional Commissioner has taken note of certain facts which were neither pressed at any stage nor have they any importance and has illegally set aside the order of the trial court. The learned counsel for the respondents emphasised that the nature of the disputed land was very much in dispute and, therefore, a conclusive report in that respect by the commission was necessary. We urged that technical defects pointed out by the learned Additional Commissioner had legally invalidated the order of the learned trial court. 5. A perusal of the record makes it clear that the learned Additional Commissioner in his impugned order has taken up applications which can be considered to be finally disposed of and made them erroneously a basis for setting aside the order of the trial court. The first application referred to by the learned Additional Commissioner is dated 19-1-1968. This application has been disposed of by the learned trial court by its order dated 14-5-1969. In that application, a request was made by the defendants respondents for calling the Commissioner before the court as a witness. The learned trial court held that it was not necessary to call the Commissioner as a witness. We observed that certain questions were put to the commissioner who pointed out every detail as contained in the report. Finally, the trial court held that in those circumstances, the cross-examination of the Commissioner was not necessary. It was therefore wrong for the Additional Commissioner to conclude that the application dated 19-11-1968 was not disposed of. 6. Separate applications by the defendants Barku and others and the plaintiff were filed on 15-1-1970 before the trial court. The defendants application dated 15-1-1970 was in respect of a prayer for appointment of an expert vakil Commissioner for demarcation of the disputed land on the same date, the learned trial court made an order appointing an advocate as commissioner and also ordering that his report should be sent. However, on the same date when an application was presented by the plaintiff/appellant informing the court that a commission had already been issued in respect of the demarcation etc. of the disputed land and the report of the commissioner had already been confirmed, the trial court ordered for not issuing the order for the report of the commissioner till the next date. The matter stayed put at that stage. of the disputed land and the report of the commissioner had already been confirmed, the trial court ordered for not issuing the order for the report of the commissioner till the next date. The matter stayed put at that stage. The trial court dismissed the suit as not maintainable on 20-3-1970. This order was set aside and the case was remanded by the learned Additional Commissioner vide his order dated 7-10-1971 for decision on merits. A fresh application was moved by the defendants for framing a new issue whether there existed abadi over the land in dispute and if so to what extent. This issue on examination was held to be redundant by the learned trial court in view of the issues already framed on the subject i.e., issues numbers 3 and 9. 7. It is obvious that the matter in respect of the identity of the disputed plot and the constructions thereon wert reported by the Commissioner and that report was confirmed by the order of the learned trial court dated 14-5-1969. The order on the application dated 15-1-70 appointing another commission was made by the trial court, apparently in ignorance of the fact that a Commissioner had already been appointed on the same subject-matter and the report of the commission had already been received and confirmed. Thus, the application dated 15-1-1970 of the defendants need not have been given any importance. The learned Additional Commissioner has blown up those applications out of proportion and erroneously set aside the order of the trial court on its basis. 8. The controversy if the disputed land is a land within the meaning of the UPZA & LR Act has been resolved conclusively by the order of the learned Additional Commissioner dated 7-10-1971 (an order which has not been challenged and has become final) and cannot be raised up again and again. 9. In view of the above, I do not agree with the conclusions drawn by the learned Additional Commissioner. The appeal is, therefore, allowed, the order of the learned Additional Commissioner dated 10-10-1973 is set aside and the order of the learned trial court dated 12-3-1973 is hereby confirmed.