Ashok Bhushan, J. - (1.) HEARD Sri Sankatha Rai, learned Counsel for the petitioner and Sri B.B. Paul, learned Counsel appearing for the contesting respondents.
(2.) BY this petition, the petitioner has prayed for quashing the order dated 25.5.2007, passed by the Additional commissioner, Administration Varanasi Division, Varanasi dismissing the revision No. 84 of 2005 filed by, the petitioner under Section 219 of the Land Revenue Act. The petitioner has also prayed for quashing the order dated 28.3.2005 passed by the Deputy Collector Revenue, Varanasi deciding the appeal filed by the contesting respondent against the order dated 22.7.2002, passed by the Naib Tahsildar allowing the restoration application of the petitioner, setting aside the mutation order dated 4.11.2000, passed by the Naib Tahsildar in proceedings under Section 34 of the Land Revenue Act, 1901 (hereinafter referred to as 'Act') Brief facts necessary to be noticed for deciding the writ petition are that Smt. Shanti Devi was recorded tenure holder. An unregistered Will deed dated 1.1.2000 is claimed to have been executed by Smt. Shanti Devi in favour of the petitioner. Another unregistered Will dated 8.3.2000 is said to have been executed by Smt. Shanti Devi in favour of contesting respondents. Smt. Shanti Devi died on 9.3.2000 at Bombay. A mutation application under Section 34 of the Act was filed by the contesting respondents on the basis of Will dated 8.3.2000. The Naib Tahsildar vide order dated 30.5.2000 allowed the mutation application of the respondents mutating their names. An application dated 4.11.2000 was filed by the petitioner, seeking recall of the order dated 30.5.2000 of Naib Tahsildar, mutating the name of the contesting respondents. The Naib Tahsildar vide his order dated 22.7.2000 set aside the order dated 30.5.2000 and restored the mutation application. An appeal was filed by the contesting respondents against the order dated 22.7.2000 before the Sub Divisional Officer. The Sub Divisional Officer passed an order on 2.8.2000, treating the appeal to be maintainable and directed that the case be, decided by the appellate authority and both the parties may led their evidence. Both the parties led their evidence and after hearing the parties and considering the evidence, the Deputy Collector vide his order dated 28.3.2005 allowed the claim of the contesting respondents and directed mutation of their names in place of Smt. Shanti Devi on the basis of the Will dated 8.3.2000. The revision was filed by the petitioner under Section 219 of the Act against the order dated 28.3.2005, which having been dismissed by the revisional Court, this writ petition has been filed challenging the aforesaid orders. Sri B.B. Paul, learned Counsel for the contesting respondents raised a preliminary objection regarding maintainability of the writ petition on the ground that the orders impugned in the writ petition have been passed in the proceedings under Section 34 of the Act, which are summary in nature hence, the writ petition under Article 226 of the Constitution of India is not maintainable. Learned Counsel for the contesting respondents relied on various decisions of this Court which would be referred, while considering the respective submissions of learned Counsel for the parties.
(3.) SRI Sankatha Rai, learned counsel for the petitioner refuting the preliminary objection of the learned Counsel for the contesting respondents, contended that the writ petition is fully maintainable under Article 226 of the Constitution of India. He submits that the order passed by the Deputy Collector dated 28.3.2000 in appeal filed by the contesting respondents, was an order passed without jurisdiction since no appeal lay under the U.P. Land Revenue Act against the order dated 22.7.2002, passed by the Naib Tahsildar allowing the restoration application. SRI Sankatha Rai referred to sections 201,210 and 211 of the U.P. Land Revenue Act and contended that appeal against the order dated 22.7.2002, passed by the Naib Tahsildar was not maintainable hence, error has been committed by the Sub Divisional Officer in allowing the appeal. He furtherer contended that the Sub Divisional Officer did not consider the evidence of the parties properly and has arrived at erroneous conclusion that unregistered Will dated 8.3.2000 is proved. Learned Counsel for the petitioner has also placed reliance on various judgments of this Court which would be referred to hereinafter, while considering the submissions in details. I have considered the submissions of the learned counsel for the parties and have perused the record.;