Shitla Pd.Srivastava, J. - (1.) This petition, under Article 226 of the Constitution of India, has been filed by the petitioner for quashing the order dated 31.1.1996 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 khafauni 1386 fasli. She died in the year 1970. She had two daughters, one Smt. Rani Devi and other Smt. Ram Dularl. 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 Shanker and others, respondent Nos. 4 to 7 filed objection against the said mutation claiming 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 Shanker and Lalmani who were sons of Smt. Shanti Devi and Kallash 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 respondent Nos. 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 respondent Nos. 4 to 7 were not the heirs and the names of Smt. Ram Dulari and petitioner ,were recorded in place of Smt. Mahadei. An appeal was filed by Lalmani against the order of the Tahsildar dated 20.7.1981 before the S.D.O. in which a mlschlevtous compromise was filed between the parties. The said compromise was filed on behalf of Smt. Ram Dulari by Sri R. S. Yadav. Advocate, and by Maria Naraln, Advocate on behalf of Smt. Rani Devi. Lalmani and Daya Shanker were identified by Sri Amar Nath Tiwari. Advocate, Kallash 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 alleged 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 compromise. 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 compromise only says that Lal Man! and Daya Shanker will have 1/4 share and rest of 3/4 share will be given to the petitioner. While accepting the compromise, the S.D.O. has said that the original mutation order passed by the Supervisor Qanoongo under PK 11 under Section 35A of the Land Revenue Act shall remain operative. The petitioner being aggrieved filed a revision before the Commissioner, Allahabad. On 7.10.1996 the Commissioner recommended that the finding of the trial court that Smt. Shanker Devi and Smt. Chhabiraja had died predeceased Mahadei, is correct, consequently, the order of Superviser 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 challenged 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 33A of the Land Revenue Act and under PK 11 which was not the order of the Consolidation 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 when Smt. Mahadei died. It is further stated that Board of Revenue has no jurisdiction to hold that the daughters were living when Smt. Mahadei died.
(3.) Sri Sankatha Ral, appearing on behalf of the respondents has filed an application to dismiss the petition on the ground that proceeding arose under Section 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 declaration of title and for possession. It is further stated by the learned counsel for the respondents that the petitioner has concealed 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 objection against the reference made by the Additional Commissioner. On 13.11.1996 the respondents filed application for restoration to set aside the ex parte order dated 15.10.1997. The restoration application was allowed by the Board of Revenue on 11.8.1998 and ex parte order was set aside. The petitioner has not challenged 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 approved the order dated 31.1.1996 passed by the S.D.O. The petitioner has concealed the aforesaid fact and filed the writ petition 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 already been implemented in khatauni and the respondents are in possession over the land in dispute.;