JUDGMENT Hon'ble Rajesh Tandon, J. Heard Sri Sarvesh Agarwal, learned counsel for the petitioner and Sri Dharam Veer Sharma, assisted by Sri B.S. Parihar, learned counsel for the respondents. 2. By the present writ petitions, the petitioner has Prayed for setting aside the judgment and order-dated 13.01.2004 passed by Additional Chief Revenue Commissioner, Uttaranchal Circuit Court, Nainital in Revision No. 180 of 2003 Rana Pratap Singh Vs. Nagar Palika Parishad Jaspur and others and in Revision No. 174 of 2003 Sunder & others Vs. Nagar Palika Parish ad Jaspur and others. 3. Briefly stated, the respondents no. 1 to 9 of the Writ Petition No. 141 (MS) of 2004 preferred a Revenue Suit No. 22/29 under Section 229-B of the U.P. Z.A & L.R. Act titled as Sunder & others Vs. State of Uttaranchal and another, before the Court of Assistant Collector (1st Class)/Parganadhikari, Kashipur, District Udham Singh Nagar, for the declaration of their rights over Khasra No. 96 area 0.437 Hectare and Khasra No. 102 Ga area 1.214 hectare totaling 1.651 hectares of Khata No. 144 of Village Jaspur Patti Uttam, Tehsil Kashipur, District Udham Singh. Nagar. 4. The State of Uttaranchal in collusion with Sunder and others/plaintiffs contested the case and the suit of the plaintiffs was ultimately decreed vide judgment of the trial court dated 30.01.2003. 5. After obtaining the decree from the trial Court, the plaintiffs have sold the land in question to one Sri Rana Pratap Singh, son of Sri Rana Bhupendra Singh, respondent no. 1in Writ Petition No. 143 (MS) of 2004 resident of Rana Farm Village Vikrampur, Tehsil Bazpur, District Udham Singh Nagar vide registered sale deed dated 31.03.2003 for Rs. 10,00,000/-. Learned counsel for the petitioner has submitted that the land in question is a State land vested with the petitioner vide notification dated 11th August, 1954 and no person can acquire bhumidhari rights on the said land. 10,00,000/-. Learned counsel for the petitioner has submitted that the land in question is a State land vested with the petitioner vide notification dated 11th August, 1954 and no person can acquire bhumidhari rights on the said land. It was further submitted that the plaintiffs deliberately did not imp-lead the him as a party to the case in the court below fully knowing that the land falls within the limits of Nagar Palika and the land in question was never recorded in category 9 as alleged by the said plaintiffs and no right can accrue to tenure holders on such land which is still recorded as talaab in revenue records in category 3 as talaab in revenue records wherein the plaintiffs were recorded as Asamis of the same and the Court below completely overlooked this aspect while decreeing the suit of the plaintiffs. 6. According to the petitioner on 24.05.2003, when the pairokar of the petitioner obtained the copy of the concerned Khasra, the petitioner came to know that the land in question has been entered in the names of the plaintiffs vide judgment of the trial Court dated 30.01.2003. The petitioner obtained the copies of the judgment and other relevant documents on 28.05.2003 form the record room at Nainital and after obtaining the copies of the relevant judgment and other papers, the counsel for the petitioner at Kashipur advised the petitioner on 10.06.2003 to file an appeal against the judgment dated 30.01.2003 of the trial Court, in the Court of Commissioner, Kumaon Division, Nainital. Nagar Palika, thereafter has preferred the appeal against the said order along with application under Section 5 of the Limitation Act on the ground that the land belong to Nagar Palika and he has not been imp-leaded, therefore, he being an aggrieved party has preferred the appeal before the Commissioner. 7. The appeal of the petitioner was transferred to the Court of Additional Commissioner, Kumaon Division, Nainital for hearing where Sunder and others appeared and filed their objections on the application of the petitioner filed under Section 5 of the Indian Limitation Act, 1963, 8. The Appellate Court vide his order dated 25th September, 2003 condoned the delay in filing the appeal by allowing allowed the application under Section 5 of the Indian Limitation Act. 9. The Appellate Court vide his order dated 25th September, 2003 condoned the delay in filing the appeal by allowing allowed the application under Section 5 of the Indian Limitation Act. 9. Aggrieved against the said order, the respondents preferred two revisions before the learned Additional Chief Revenue Commissioner, Uttaranchal, Circuit Court, Nainital on 06.11.2003, which were registered as Revision No.180 of 2003 Rana Pratap Singh Vs. Nagar Palika Parishad Jaspur and others and Revision No. 174 of 2003 Sunder and others Vs. Nagar Palika Parishad Jaspur and others. 10. The revisional court allowed both the revisions and the order passed by the Commissioner dated 25th September, 2003 has been set aside. 11. Learned counsel for the petitioner during the course of the hearing has submitted that the land belong to Nagar Palika and as such he being aggrieved party has every right to file appeal before the Commissioner and the Commissioner has rightly passed the order allowing the application under Section 5 of the Indian Limitation Act and the revisional Court while exercising the jurisdiction under Section 333 of the U.P. Z.A. & L.R. Act, which is para materia to Section 115 of the Code of Civil Procedure has no jurisdiction to interfere with the order passed by the fact finding court. 12. On the other hand, Sri Dharam Veer, Sr. Adv. Assisted by Sri B.S. Parihar, learned counsel for the respondent no. 1 in Writ Petition No. 143 (MS) of 2003 and respondents no. 1 to 9 in Writ Petition No. 141 (MS) of 2003 has submitted that the revisional court has rightly allowed the revision in as much as the Commissioner having not recorded any finding while allowing the application under Section 5 of the Indian Limitation Act and further as to whether Nagar Palika was an aggrieved party or not so as to confer any right to Nagar Palika to file appeal has also not been considered by the Commissioner. 13. A perusal of the order passed by the appellate Court shows that he has passed the order allowing the application under Section 5 of the Limitation Act and he has not decided the question as to whether the Nagar Palika is aggrieved party so as to file any appeal and further as to whether Nagar Palika has shown sufficient cause so as to condone the delay in filing the appeal. The question regarding the Nagar Palika is an aggrieved party has not been decided by the appellate Court. 14. Both the parties have filed the documents on the record viz. Supplementary Affidavit, Supplementary Counter Affidavit as well as Supplementary Rejoinder Affidavit. 15. Learned counsel for the respondent no. 1 in Writ Petition No. 143 (MS) of 2003 and respondents no. 1 to 9 in Writ Petition No. 141 (MS) of 2003 has submitted that the land in question has never been recorded in revenue record as Talab and the land in question remained in cultivatory possession as will evident from Khatauni 1368 Fasli Khasra No. 203 Aa area 3.00 acres in which the names of Puran Singh, son of Ram Swaroop and Ram Swaroop son of Kanhai are recorded in category -9 and further it was submitted that from the statement given by Sri Mahipal Singh Lekhpal DW. 1 in trial court the land in dispute is being cultivated for a period of 35-36 years. . 16. Learned counsel for the respondent no. 1 in Writ Petition No. 143 (MS) of 2003 and respondents no. 1 to 9 in Writ Petition No. 141 (MS)of 2003 has referred the documentary evidence by showing that in consolidation operation the old number 202/1 area 1.08 acre was converted into new number 96 and 203 min area and 3.00 acre was converted as new number 102 Ga, but due to mistake the said land is mentioned as Class-3 in Jot Chakbandi Akar Patra 41, where the land has been qualified as "Matiyar" which means a cultivatory land. 17. It is well settled that the jurisdiction under Section 333 of the U.P. Z.A. & L.R. Act is para-materia with Section 115 of the Code of Civil Procedure and the court has limited jurisdiction to exercise the powers. 18. In Major 5.5. Khanna Vs. Brig. F.J. Dillon AIR 1964 5C 497, the Apex Court has observed as under : "The power given by S. 115 of the Code is clearly limited to the keeping of the Subordinate Courts within the bounds of there jurisdiction. It does not comprehends the power exercisable under the writ of Prohibition or Mandamus. It is also not a full power of Certiorari in as much as it arises only in a case of jurisdiction and not in a case of error. It does not comprehends the power exercisable under the writ of Prohibition or Mandamus. It is also not a full power of Certiorari in as much as it arises only in a case of jurisdiction and not in a case of error. It has been ruled by the Judicial Committee and also by this. Court that the section is concerned with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one exists or an assumption of jurisdiction where none exists and lastly acting with illegality or material irregularity. Where there is no question of jurisdiction in this manner the decision can not be correct for it has also been ruled that a Court has jurisdiction to decide wrongly as well as rightly." 19. Relying upon the judgment of the Apex Court in K. A. Anthappai v. C. Ahammed JT 1992 (4) SC 65 in Ram Murti versus Deputy Director of Consolidation 1995 RD 249 High Court of Allahabad has held as under: "It may be noticed that the Deputy Director of Consolidation was exercising revisional power under Section 48 as distinguished from an appellate power. Sectioh 48 of the U.P. Consolidation of Holdings Act, 1953 is no doubt couched in a language of wide amplitude but that does not mean that the Deputy Director of Consolidation may act as an appellate Court. In K.A. Anthappai v. C. Ahammed JT 1992 (4) SC 65 the Supreme Court was considering the scope of revisional power of the High Court under Section 20 of Kerala Building (Leases and Rent Control) Act, 1965 where under the High Court can "call for and examine the records relating to any order passed or proceedings taken under this Act by such authority for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and may pass such order in reference thereto as it thinks fit" a provision similar to the one contained in Section 48 of the U.P. Consolidation of Holdings Act, 1953. It was held as under: "It is no doubt true that the scope of the revisional jurisdiction conferred under Section 20 is wider than that conferred under, Section 115, C.P.C. but at the same time a revision under Section 20 cannot be equated with an appeal. Moreover, the revisional power conferred under Section 20 also embraces an order passed by the appellate authority. Moreover, the revisional power conferred under Section 20 also embraces an order passed by the appellate authority. While considering the provisions conferring revisional power couched in a language similar to that contained in Section 20 of the Act this court has laid down that the power conferred on the High Court is essentially a power of superintendence and despite wide language employed, the High Court should not interfere with the finding of fact of the subordinate court merely because it does not agree with the said findings see Dattonpani Gopa/varao Deva Ratte v. Vithabrao Maruthirao Jagangawa/1975 Supp/. SCR 67, M/s Raja Laxmi Dying Works and others v. Rangaswami Chhetiar AIR 1980 SC 1253. The Supreme Court further held : "The revisional court must be reluctant to embark upon an independent reassessment of the evidence and supplant a conclusion of its own, so long as evidence on the record admitted of an supported the one reached by the Court below. Rajvir v. S. Chokesi & Co. 1989 (1) SCC19 at Page 37." In the case of Ram Avtar and others Vs. Ram Dhani and others (1997) 2 SCC 263, the Apex Court has held as under : "8. We are surprised as to how the Deputy Director while exercising the revisional power entered into all questions of fact and came to the conclusion on pure conjecture that the appellants before this Court shall be deemed to be in possession of the lands since 1932. This Court has repeatedly pointed out that howsoever wide the power under statutory revision may be ion contrast to Section 115 of the Code of Civil Procedure, still while exercising that power the authority concerned cannot act as court, of appeal so as to reappreciate the evidence on record for recording findings on questions of fact." 20. In Kashi Nath and another Vs. Board of Revenue' U.P. at Allahabad and others 2001 RD Page 562, after referring various judgments of the Apex Court, it has been held that the jurisdiction of the revisional court is very limited and the court has no jurisdiction to reappraise the evidence. The observations are quoted below : "11. It is evident from the view taken by the Apex Court that the Courts always appreciate exercise of power in favour of hearing and not to shut out the hearing. The observations are quoted below : "11. It is evident from the view taken by the Apex Court that the Courts always appreciate exercise of power in favour of hearing and not to shut out the hearing. The court below by passing the impugned order shut out the hearing and it illegally upheld the validity of the ex-parte decree, which was passed without service of notices upon the petitioners. Similarly, learned counsel for the petitioners also referred to and relied upon the decision in State of U.P. and others versus IIIrd Additional District Judge, Azamgarh and another AIR 1989 All. Page 14, wherein it was ruled as under : "8. In the instant case I am of the view that reappraisal of the evidence made by the learned Additional District Judge, either to ascertain whether sufficient cause was made out for an application under Order 9, Rule 13 of the Code or not, or whether sufficient case was made out for condo-nation of delay under Section 5 of the Limitation Act or not, was beyond his jurisdiction in exercise of powers under Section 115 of the Code. He appears to have presumed as if he was exercising jurisdiction of the appellate court. It would not be out of a place of mention that in Manik Chandra Nandy v. Debdas Nandy AIR 1986 SC 446, their Lordships of Supreme Court explaining the jurisdiction of revisional Court under Section 115 of the Code in particular reference to an application under Order 9, Rule 13 of the Code, observed that learned Additional District Judge must have been cautious about the scope of the revisional jurisdiction and he need not have mixed it with the appellate jurisdiction. In my considered opinion it is needless to repeat that exercise of appellate jurisdiction is free to decide all, questions of law and fact. In exercise of revisional jurisdiction the Court is not entitled to re-appraisal of the evidence on the record and to substitute its own findings in place of the findings of the trial court. The plea of limitation is mixed question of law and fact. In exercise of revisional jurisdiction the Court is not entitled to re-appraisal of the evidence on the record and to substitute its own findings in place of the findings of the trial court. The plea of limitation is mixed question of law and fact. The findings of the trial court that sufficient cause was made out for allowing• application under Order 9, Rule 13 and also that sufficient cause was made out for condo-nation of delay under Section 5 of the Act, could not be said to be not borne but by the evidence on the record nor the same could be said to be manifestly contrary to the evidence on the record or palpably wrong and at the same time it could not be said that in case those findings are permitted to continue they would in any way result in miscarriage of justice. 21. Matter can be viewed from other angle as well. The Court should see in a given case that the parties may be given an opportunity of being heard on merits and not that the opportunity of hearing may be shut out. In the instant case in case ex parte 'decree is maintained, the petitioners would be prevented from appearing before the Court or from proving their case on merits. The findings recorded by the trial court about the sufficient cause having been made out by the defendants under Order 9 Rule 13 of the code for restoring the suit and sufficient ground fro condo-nation of delay under Section 5 of the Act was made out, were essentially findings of fact and the same cannot be re-examined by the revisional court under Section 115 of the Code. The impugned order appears to be manifestly erroneous in respect of exercise of jurisdiction under Section 115 of the Code. The revisional Court assumed as it was exercising appellate jurisdiction conferred under Order 43, Rule 1 or under Section 96 of the Code. In this view of the matter as the question of jurisdiction was not involved and the lower appellate court assumed the jurisdiction of 1st appellate court, whereas in fact it has got only the limited jurisdiction of a revisional court, a case for interference and issuance of writ of certiorari has been made out. In this view of the matter as the question of jurisdiction was not involved and the lower appellate court assumed the jurisdiction of 1st appellate court, whereas in fact it has got only the limited jurisdiction of a revisional court, a case for interference and issuance of writ of certiorari has been made out. The only inescapable conclusion is that the findings of fact recorded by the trial court could not be set aside in exercise of revisional jurisdiction. 22. The Apex Court in M.S. Grewal Vs. Deep Chand Sood (2001) 8 SCC 151, has held as under: "Law Courts will lose their efficacy if they cannot possibly respond to the need of the society-technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice." 23. So far as the limitation is concerned, it is well settled that the appellate court has to record the findings on the question of limitation as well as on the maintainability of appeal at the instance of the petitioner as to whether there was any sufficient cause for condoning the delay. 24. In view of the above, the matter is sent back to the appellate court for recording the findings on both the questions with regard as to whether the petitioner is an aggrieved party and further with regard to sufficiency of cause for condoning the delay in filing the appeal. 25. Since these are the questions of fact and therefore, I decline to entertain these arguments under Section 226/227 of the Constitution of India. 26. However, it will be open for both the parties to file documents before the appellate court to justify the filing of the appeal before the Commissioner. The petitioner, therefore, shall satisfy the appellate court that he is an aggrieved party and the application filed under Section 5 of the Limitation Act shall also be considered on merits. 27. A writ of certiorari is issued quashing the order dated 13.01.2004 passed by the Additional Chief Revenue Commissioner, Uttaranchal, Circuit Court, Nainital as well as order of Commissioner. 28. Subject to the aforesaid both the writ petitions are allowed. No order as to cost.