Shitla Pd.Srivastava, J. - (1.) This writ petition has been filed by the petitioner for quashing the order dated 23.8.2000, passed by respondent No. 1, which has been filed as Annexure-12 to the present writ petition, and further prayer has been made to issue a direction that alleged claim of respondent Nos. 5 and 6 in respect of property in question based on mortgage deed dated 2.2.1974 is not maintainable being barred by Section 49 of the U. P. Consolidation of Holdings Act. The other prayer has been made for issue of ad interim mandamus staying the operation of the impugned order of the respondent No. 1 dated 23.8.2000 including dispossession of the petitioner from the property in question.
(2.) Sri N. B. Tewari, learned counsel for the respondent has raised a preliminary objection that the present writ petition is not maintainable as it has arisen out of the proceedings under Section 34 of the Land Revenue Act. His submission is that this Court has taken a view in a case in Smt. Rani Devi v. Board of Revenue, 1999 RD 633, that the writ petition against order passed in the proceedings arising out of mutation case is not maintainable. He has further submitted that mutation proceedings is summary in nature and it does not decide the right of the parties, therefore, that judgment and order passed in the mutation will not bound the parties nor the regular court is bound by the said order and can take its own decision, therefore, the writ petition under Article 226 of the Constitution of India is not maintainable. For that purpose he has placed reliance on a number of decisions.
(3.) The first decision cited by him for this purpose is in Lekhraj and another v. Board of Revenue, 1981 RD 18, delivered in W.P. No. 4785 of 1979 dated 4.8.1980, where this Court has upheld the preliminary objection raised on behalf of the opp. party and dismissed the writ petition on the ground of the existence of an equally efficacious alternative remedy by way of filing a regular suit to establish title. The second decision relied upon by Sri Tewari is a decision in State of U. P. through the Collector, Agra v. Board of Revenue at Lucknow and others, 1993 RD 206, delivered in Writ Petition No. 30386 of 1991, where this Court has held that under Section 34 of the Act the right of parties are not decided rather mutation proceedings are fiscal in nature and remedy before competent court is by filing a regular suit or initiating some other proceedings. Third decision relied upon by Sri Tewari is in Narain Singh and another v. Additional Commissioner, Meerut and another, 1999 RD 416, given in the Writ Petition No. 10128 of 1999, wherein this Court has held that Section 34, proceedings is summary in nature and right and title of the parties are not decided and orders passed are not binding upon the Courts in regular suits or proceedings, therefore, the writ petition is not maintainable. Fourth decision relied upon by Sri Tewari is in Jaipal v. Board of Revenue, AIR 1957 All 205, where the Division Bench of this Court has held that Section 63 of the Land Revenue Act expressly reserve the right of the party to establish his right and title in a regular suit, therefore, the writ petition against the proceedings under Section 34 of the Land Revenue Act is not maintainable. Sri Tewari has also placed reliance on a case in 1993 RD 206, wherein this Court has held that reference proceedings in mutation cases are only to facilitate payment of Revenue rights of the parties are not decided. It is fiscal in nature and the writ petition is not maintainable.;