M.P.Mehrotra, J. - (1.) This petition arises out of the proceedings in mutation.
(2.) The facts, in brief, are these: The last admitted tenure-holders, Sukh Ram, died and thereafter two applications were moved under S. 34 of the U. P. Land Revenue Act claiming mutation. The petitioners Lekhraj and Devi Ram moved one application and, inter alia, they based their claim on a gift deed which was allegedly executed by the deceased Sukh Ram. The execution of the said gift deed was denied by opposite party No. 4 Kalandi. He claimed to be entitled to mutation on the basis of succession and possession. The application of the petitioners was rejected by the Tehsildar on 14th Mar. 1975, and a true copy of his order is annexure I to the petition. The Tehsildar has recorded a clear finding that Kalandi was in possession and not the petitioners before me. Thereafter a revision was filed before the Additional Collector, but the same was dismissed by an order dated 23rd Aug. 1976, a true copy whereof is annexure II. Learned counsel for opposite party No. 4 states that the date 23-3-76 typed at the end of the said order is a typographical error and the correct date is 23rd Aug. 1976. Thereafter a second revision was tiled under S. 219 of the U. P. Land Revenue Act against the said order dated 23rd Aug. 1976, but second revision also fail- ed. Now the petitioners have come up in the instant petition, and in support thereof, I have heard Dr. J. N. Dubey. In opposition, Sri B. B. Paul has made his submissions on behalf of opposite party No. 4 Sri Paul raised a preliminary objection that this petition under Art. 226 of the Constitution is not maintainable because an equally efficacious alternative remedy was available to the petitioners by way of filing a regular suit to establish their title. The learned counsel has placed reliance on a Division Bench pronouncement of this Court in the case of Jaipal v. Board of Revenue (AIR 1957 All 205): (1956 All LJ 807 (1)) where it was laid down as follows: "It has, however, been the consistent practice of this court not to interfere with orders made by the Board of Revenue in cases in which the only question at issue is whether the name of the petitioner should be entered in the record of rights. That record is primarily maintained for revenue purposes and an entry therein has reference only to possession. Such an entry does not ordinarily confer upon the person in whose favour it is made, any title to the property in question and his right to establish his title to is expressly reserved by S. 40 (3) of the Act. The only exception to this general rule is in those cases in which the entry itself confers a title on the petitioner by virtue of the provisions of the U. P. Zamindari Abolition and Land Reforms Act."
(3.) It should be seen that after the pronouncement of the Division Bench, sub-sec. (3) of S. 40 was deleted by the U. P. Land Laws (Amendment) Act (No. X of 1961). However, by the U. P. Land Laws (Amendment) Act (No. XXXV of 1970) S. 40-A was placed on the Statute Book, and it lays down the law almost analogous to that which was contained in the deleted sub-sec. (3) of S. 40. Accordingly, in my view, the aforesaid Division Bench pronouncement continues to be saved and it has not lost its efficacy and relevance despite the deletion of subsection (3) of S. 40.;