- (1.) SHITLA Pd. Srivastava, J. This peti tion, under Article 226 of the Constitution of India, has been filed by the petitioner for quashing the order dated 3 1 - 1- 1996 passed by the S. D. O. and order dated 5-4-1999 passed by the Board of Revenue.
(2.) THE brief facts, as stated in the petition, are that the disputed khatas were recorded in the name of Smt. Mahadei, mother of the petitioner in Khatauni 1386 fasli. She died in the year 1970. She had two daughters, one Smt. Rani Devi and other Shri. Ram Dulari. Smt. Ram Dulari has also died and in accordance with the provisions of Section 172 of U. P. Zamindari Abolition and Land Reforms Act, hereinafter referred to as 'the Act', it is alleged that her right will devolve on the nearest surviving heirs. THE petitioner claimed that she being the heir of Smt. Mahadei applied for mutation of her name along with her sister Smt. Ram Dulari in the year 1979 after the death of Smt. Mahadei. It is stated that Daya Shankar and others, respondents No. 4 to 7 filed objection against the said mutation claim ing that they were daughter's son of Smt. Mahadei from two daughters, Smt. Shanti Devi and Smt. Chhabiraja who had died in the life time of Smt. Mahadei. Daya Shankar and Lalmani who were sons of Smt. Shanti Devi and Kailash Nath and Shambhoo Nath who were sons of Smt. Chhabiraja got their names mutated in the revenue record not disclosing the correct fact that there were two daughters of Smt. Mahadei who were still living. It is further stated that the respondents No. 4 to 7 alleged that they were entitled to inherit the property of Smt. Mahadei as their mothers were also alive on the death of Smt. Mahadei along with Smt. Rani and Smt. Ram Dulari. THE petitioner further alleged that the Tahsildar by his order dated 20-7- 1981 has held that the petitioner and Smt. Ram Dulari were the heirs of Smt. Mahadei and respondents No, 4 to 7were not the heirs and the names of Smt. Ram Dulari and petitioner were recorded in place of Smt. Mahadei. An appeal was filed by Laimani against the order of the Tahsildar dated 20-7-19 and before the S. D. O. in which a mischievous compromise was filed between the parties. THEsaid compromise was filed on behalf of Smt. Ram Dulari by Sri. R. S. Yadav, Advo cate, and by Maha Narain, Advocate on behalf of Smt. Rani Devi, Laimani and Daya Shankar were identified by Sri Amar Nath Tiwari, Advocate, Kailash Nath and Shambhoo Nath did not file appeal against the order dated 20-7-1981 therefore, the order became final. THE petitioner challenged the compromise on the point that it was not verified before the S. D. O. before the appeal was pending. It is further al leged that no power or vakalatnama has been given by the petitioner to Sri Maha Narain, Advocate, to appear before the appellate Court and enter into com promise. It is further stated that on 31-1-1996 the appellate Court decided the appeal in terms of compromise. THE petitioner has contended that the com promise only says that Lal Mani and Daya Shankerwill have 1/4 share and rest of 3/4 share will be given to the petitioner. While accepting the com promise the S. D. O. has said that the original mutation order passed by the Supervisor Qanoongo under PK 11 under Section 35-Aof the Land Revenue Act shall remain operative. THE petitioner being aggrieved filed a revision before the Commissioner, Al lahabad. On 7-10-1996 the Commissioner recommended that the finding of the trial Court that Smt. Shankar Devi and Smt. Chhabiraja had died predeceased Mahadei, is correct, consequently, the order of Supervisor Qanoongo is correct and recommended that the order of the trial Court be mutated. THE Board of Revenue accepted the reference on 15-10-1997. THE petitioner has accordingly chal lenged the order of the Board of Revenue on the ground that the Board of Revenue has no jurisdiction to review the earlier order nor has power to recall the same. THE petitioner has further contended that the Board of Revenue assumed that the order of mutation has been passed in favour of the respondents on the basis of the order of the consolidation authorities which is incorrect. THE orders were passed in the case under Section 33-A of the Land Revenue Act and under PK 11 which was not the order of the Con solidation Officer, therefore, there was no question of bar of Section 49 of U. P. Consolidation of Holdings Act. Petitioner's further contention is that the Board of Revenue has no jurisdiction to interfere with the order passed by the S. D. O. on the question of fact wherein it was held that only three daughters were living and Smt. Mahadei died. It is fur ther stated that Board of Revenue has no jurisdiction to hold that the daughters were living when Smt. Mahadei died. Sri Sankantha Rai, appearing on behalf of the respondents has filed an ap plication to dismiss the petition on the ground that proceeding arose under Sec tion 34 of the U. P. Land Revenue Act, therefore, no writ is maintainable against the order passed in summary proceeding and the remedy is to file suit for declara tion of tile and for possession. It is further stated by the learned Counsel for the respondents that the petitioner has con cealed the material facts that the order dated 15-10-1997 was passed by the Board of Revenue ex parte on the sole ground that the respondents have not filed objec tion against the reference made by the Additional Commissioner. On 13-11-1996 the respondents filed application for res toration to set aside the ex parte order dated 15-10-1997. The restoration ap plication was allowed by the Board of Revenue on 11-8-1998 and ex parte order was set aside. The petitioner has not chal lenged the order dated 11-8-1998 which became final and the Board of Revenue passed a fresh order on 5-4-1999 after hearing the parties on merit and rejected the reference made by the Additional Commissioner dated 7-10-1997 and ap proved the order dated 31-1-1996 passed by the S. D. O. The petitioner has concealed the aforesaid fact and filed the writ peti tion with false facts, therefore, the petition is not maintainable. He has further stated that the order dated 31-1-1996 passed by the S. D. O. and as the order dated 5-4-1999 passed by the Board of Revenue has al ready been implemented in Khatauni and the respondents are in possession over the land in dispute. The respondents actually, in other words, has raised preliminary point regarding maintainability of the writ peti tion in proceeding under Section 34 of Land Revenue Act, Sri Sankatha Rai, learned Counsel for the respondents has submitted that writ petition against muta tion order is not maintainable. For that purpose he has placed reliance in a case reported in AIR 1981 Allahabad 167 Majid and others v. Munafait and another. In this case it was held that as no question of entry conferring title upon petitioner is involved hence the writ petition is not maintainable as petitioner has alternative remedy through regular Courts open to the petitioner. This judgment delivered by Hon. K. P. Singh, J. (as he then w; ) placing reliance on 1956 A. L. J. 807. He has further placed reliance in a case reported in 1993 R. D. , 206 - State and others v. Board of Revenue and others, wherein it was held that, mutation proceeding do not decide the right of the parties they are rather fiscal in nature and has got no legal effect on the right of the parties rather only in place of A name of B has been entered in the relevant revenue papers just to facilitate payment of revenue from the correct person. Therefore, the remedy of the persons aggrieved by such order is to file regular suit.
(3.) SRI G. N. Verma, learned Counsel for the petitioner in reply to the argument of SRI Sankatha Rai, learned Counsel for the respondent has submitted that when the Court has foiled to exercise jurisdic tion vested in him by law and has passed an illegal order in that case the writ petition is maintainable. For that purpose he has placed reliance in a case reported in 1996 R. D. 100 SRIdhar Tripathi v. Board of Revenue and others. This is the decision of this High Court delivered by N. L. Gangu ly, J. as he then was. As per chance SRI G. N. Verma who is appearing in this case was appearing in that case on behalf of the respondents and he raised a prelimi nary point that writ petition is not main tainable since it relates to the mutation proceeding. SRI G. N. Verma in that case has placed reliance on a case reported in 1981 R. D. 18 - Lekhraj and another v. Board of Revenue and others, 1996 R. D. (H) 34 - Nathu Singh v. Collector, Banda. The Court in that case rejected the argu ment of SRI G. N. Verma that it was not the pure case of mutation and entertained the writ petition. In the instant case it is admitted that mutation proceedings were initiated after the death of Smt. Mahadei and it was contested by the respondents. The matter was referred to the Board of Revenue and the Board of Revenue passed order and the same order is under challenged in this writ petition. It cannot be said that proceedings giving rise to the writ petition was not a proceeding for mutation, therefore, I am of the view that the writ petition is not maintainable against the orders passed in mutation proceeding.;