JUDGMENT Hon’ble Mrs. Sunita Agarwal, J.—Heard Shri Shashi Nandan, learned Senior Advocate assisted by Shri Santosh Kumar Srivastava, learned counsel for the petitioner, Shri Pradeep Kumar Tripathi, learned Advocate holding brief of Shri M.C. Tripathi, learned counsel for the respondent No. 1 and the learned Standing Counsel for the respondent No. 2. 2. Present writ petition has been filed challenging the order dated 28.1.1995 passed by the Sub-Divisional Magistrate Kanpur, order dated 24.8.95 passed by the Commissioner Kanpur Division, Kanpur and order dated 4.11.2003 passed by the Board of Revenue, Lucknow. 3. The brief facts of the case are that land in dispute,namely, Khasra Nos. 824, 825, 826, 827, 828, 829 and 832 measuring area 47 Bigha ten Bishwa situated in village Daneli Sujanpur, Village Mohal Chandrikprasad, Teshil and Pargana Kanpur was originally a ‘Sirdari’ land of one Smt. Shakuntala Devi. Smt. Shakuntala Devi acquired Bhumidhari rights by depositing ten times of the land revenue on 28.11.1952. Smt. Shakuntala Devi executed a sale-deed dated 31.3.1953 in respect of land in question in favour of one Shri Shamsher Singh Sarraf,which was registered on 1st April 1953. Shri Shamsher Singh Sarraf moved an application on 3.9.1962 under Section 143 of U.P. Z.A. and L.R. Act (hereinafter referred to as the ‘Z.A. Act’) for declaration of land as Abadi. The land was declared as Abadi by order dated 31.7.1963 passed by the Assistant Collector Ist Class,incharge,Kanpur Sub-Division, Kanpur in Misc. case No. 148 of 1962. The declaration under Section 143 of Z.A. Act has been registered with Sub-Registrar on 7.9.1963 under the Registration Act as per provision of Section 145 of Z.A. Act. Copy of the declaration made in favour of Shri Shamsher Singh Sarraf is on record as annexure -1 to the Writ Petition. Shri Shamsher Singh Sarraf vide sale-deed dated 28.2.1970 registered on 15.5.1970 transferred and handed over possession of the land in dispute in favour of petitioner-society. After purchasing the said plots, Society submitted layout plan for the purpose of development to the Kanpur Development Authority. For the purposes, the development work to be carried out, the petitioner-society had entered into an agreement with Kanpur Development Authority and deposited sum of Rs. 9 lacs as demanded by it. 4. After purchasing the said plots, Society submitted layout plan for the purpose of development to the Kanpur Development Authority. For the purposes, the development work to be carried out, the petitioner-society had entered into an agreement with Kanpur Development Authority and deposited sum of Rs. 9 lacs as demanded by it. 4. The case of the petitioner is that despite land having been declared as Abadi land and copy of the order dated 31.7.1963 was forwarded to the Tahsildar for Amaldaramad in village record, corresponding entries in the revenue record were not made. Petitioner-society under mistaken advice moved an application for mutation of its name in place of Shri Shamsher Singh Sarraf, who had executed sale-deed in favour of petitioner society. The application for mutation moved by the petitioner-society was rejected by the Sub-Divisional Officer and revision was also dismissed by the Additional Commissioner, Allahabad Division, Allahabad on the ground that after declaration under Section 143 of Z.A. Act, land in question is no longer “land” used for agriculture or allied purposes, therefore, the land being exclusively used for purposes of Abadi, mutation under Section 34 of the Land Revenue Act cannot be executed. The order in revision was passed by the Additional Commissioner II, Allahabad Division, Allahabad on 30.5.1972. 5. On 12th May, 1993 an ex parte order was passed in a case registered under Section 34/35 of the Land Revenue Act, suo motu by the Naib Tahsildar, Kanpur Nagar. The case was registered as case No. 23 of 1992. By the said ex parte order, on the basis of statement of Lekhpal, the land was recorded in the name of Kanpur Development Authority in the revenue record. It was mentioned in the order dated 12.5.1993 that the tenure holder Shri Shamsher Singh Sarraf died issueless and on the basis of objections filed by the Kanpur Development Authority entries were directed to be made in its name. It was mentioned in the order dated 12.5.1993 that the tenure holder Shri Shamsher Singh Sarraf died issueless and on the basis of objections filed by the Kanpur Development Authority entries were directed to be made in its name. As soon as petitioner came to know about the said order, recall/restoration application was filed on 20.12.1993, which was allowed and the case was restored to its original number vide order dated 29.3.1994.The Naib Tashildar, thereafter, passed order dated 30.4.1993 on merits, wherein it was recorded that land in question was purchased by the petitioner-society and while deciding the question of succession of Shri Shamsher Singh Sarraf, it was observed that petitioner-society submitted layout plan, which was approved on 3.7.1975 and amount approximately 9 lacs has been deposited towards the development charges. Kanpur Development Authority, who filed objection could not produce any evidence to the contrary, accordingly, it was directed that entries be made in the name of petitioner-society. 6. Aggrieved, Kanpur Development Authority respondent No. 1 filed appeal before the Sub-Divisional Magistrate under Section 210 of Land Revenue Act.The Sub-Divisional Magistrate allowed the appeal vide order dated 28.1.1995. 7. Aggrieved, petitioner filed revision before the Commissioner Kanpur Division, Kanpur, which was registered as revision No. 125 of 1995. The Commissioner Kanpur Division, Kanpur vide order dated 24.8.1995 dismissed the revision filed by the petitioner and affirmed the findings recorded by the Sub-Divisional Magistrate. Another revision was filed before the Board of Revenue being revision No. 293 of 1995, which was dismissed on 4.11.2003.The order passed in appeal filed by the Kanpur Development Authority was affirmed in revision by the Commissioner as also by the Board of Revenue on the ground that sale effected on 28.2.1970 is void in terms of Section 166 of the Z.A. Act as the same is in contravention of Section 154 of the Z.A. Act. It was observed that land which was subject-matter of sale-deed dated 28.2.1970 is more than 12.5 acres and in view of restriction under Section 154 of the Z.A. Act, sale-deed is void and land vest in State Government by virtue of provision of Section 167 of the Act on the date of transfer. As such petitioner-society had no right, title and interest in the land. 8. As such petitioner-society had no right, title and interest in the land. 8. The appellate authority i.e. Sub-Divisional Magistrate, Kanpur Nagar in its order dated 28.1.1995 observed that restoration application was filed on 20.12.1993 whereas sale-deed is of 28.2.1970, therefore, there is no justification of mutation of petitioner’s name after such a long time. The order dated 30.4.1994 passed by the Naib Tashildar making entries in the name of the petitioner was set aside on the grounds mentioned above. The appeal filed by the Kanpur Development Authority was allowed and it was directed that in place of petitioner-society ‘Parwana Amaldaramad’ be issued and the name of Kanpur Development Authority be entered in the records of rights. The same view was affirmed by the revisional authority, the Commissioner and also the Board of Revenue. 9. Challenging the orders impugned, learned counsel for the petitioner Shri Shashi Nandan,learned Senior Advocate assisted by Shri S.K. Srivastava,learned counsel for the petitioner submits that in the application filed by the society as early as in the year 1971 under Section 34 of the Land Revenue Act, Sub-Divisional Officer as also the Additional Commissioner Allahabad refused to entertain the application on the ground that once the declaration under Section 143 of Z.A. Act has been made, land in question is no longer being used for agriculture or allied purposes and, therefore, petitioner cannot be said to be a Bhumidhar of the land. Land is being exclusively used for the purpose of Abadi and, therefore, mutation under Section 34 of the Land Revenue Act cannot be executed. In view of the said fact the revenue Court had erred in law in initiating suo motu proceedings under Sections 34/35 of the Land Revenue Act and making entries in the name of K.D.A i.e. Kanpur Development Authority. 10. He further submits that order passed by the appellate authority as well as revisional authority is without jurisdiction. Land has been declared Abadi under Section 143 of the Z.A. Act and, therefore, by virtue of provision of Section 143(2) of the Z.A. Act, upon the grant of the declaration as mentioned in sub-section (1), the provisions of Chapter VIII of the Z.A. Act shall cease to apply with respect to such land. The land in dispute is no longer “land” within the meaning of Section 3(14) of the Z.A Act. The land in dispute is no longer “land” within the meaning of Section 3(14) of the Z.A Act. Sections 154, 166, 167 fall within the Chapter VIII of Z.A. Act and, therefore, after declaration made under Section 143 of the Act, the provisions as contained in these sections would become wholly inapplicable. Thus, the basis of setting aside the order dated 30.4.1994 passed by the Naib Tahsildar making entries in the records of rights in the name of petitioner by the appellate authority as well as revisional authority cannot be sustained. 11. Learned counsel for the petitioner further submits that the fact that the land was declared Abadi under Section 143 of Z.A. Act was brought to the knowledge of the authorities. However, contention of the revisionist -petitioner was rejected by the Board of Revenue in view of averments made in the sale-deed dated 28.2.1970 that land was being used for agriculture purpose by the tenure holder. Therefore, the sale would be hit by Section 154 of the Z.A. Act. The said finding is totally perverse in as much as the declaration made under Section 143 of the Z.A. Act exists as on date. No further declaration whatsoever has been made under Section 144 of the Z.A. Act that the land held by Bhumidhar was being used for the purposes of agriculture, horticulture etc. 12. He further invites attention of the Court to the averments made in the sale-deed that the land was purchased by the society for providing housing accommodation to its member belonging to middle and lower income group. The society paid substantive amount for the development charges to the Kanpur Development Authority and Nagar Mahapalika, Kanpur had already constructed the road and had under taken construction of other work, hence it was agreed between vendors and the society that possession of the land be handed over to the society. On the basis of these averments, learned counsel for the petitioner submits that there cannot be any two views about the land in question being Abadi land having been declared under Section 143 of Z.A. Act. 13. He further submits that in any case, proceedings under Section 34 of the Land Revenue Act are summary proceedings and revenue Court has limited jurisdiction to order for mutation on the basis of succession and transfer. 13. He further submits that in any case, proceedings under Section 34 of the Land Revenue Act are summary proceedings and revenue Court has limited jurisdiction to order for mutation on the basis of succession and transfer. At the most, in case, any dispute arises with regard to succession of the land, same can be decided by the revenue Court under Section 34 of the Land Revenue Act. However, appellate authority and also revisional Court had exceeded in its jurisdiction in entering into the validity of the sale-deed dated 28.2.1970.This question was not open in the summary proceedings touching the rights, title and interest of the parties. 14. This apart, there is nothing on record to suggest that Kanpur Development Authority has any right, title and interest in the property and therefore, its name could not have been mutated by the Revenue Authorities. 15. Shri Pradeep Kumar, learned Advocate holding brief of Shri M.C. Tripathi, learned counsel for the Kanpur Development Authority in reply raised an objection with regard to maintainability of the writ petition. He contended that orders impugned are passed in mutation proceedings under Section 34/35 of the Land Revenue Act and,therefore, this Court should refrain itself from interfering in such order as it does not confer any right in favour of the person, whose name is mutated. The issue can be decided in regular suit by the competent Court. 16. He further submits that a suit namely, original suit No. 1303 of 1996 for declaration and permanent prohibitory injunction has been filed by the petitioner-society before the Civil Court which was registered as original suit No. 1303 of 1996. The trial Court dismissed the suit. The First Appeal was also dismissed and Second Appeal No. 990 of 2006 is pending consideration before this Court. In view of the pendency of the second appeal before this Court, the present writ petition is not maintainable. Petitioner cannot be permitted to avail two remedies simultaneously. In support of his arguments he has placed reliance on paragraphs 7,9,10,16 and 17 to the counter-affidavit filed by the Kanpur Development Authority. 17. Learned Standing Counsel tried to justify the order passed by the authority below on the ground that writ petition is directed against the orders passed in a summary proceedings under Section 34 of the Land Revenue Act and therefore, may not be entertained by this Court. 17. Learned Standing Counsel tried to justify the order passed by the authority below on the ground that writ petition is directed against the orders passed in a summary proceedings under Section 34 of the Land Revenue Act and therefore, may not be entertained by this Court. He however, failed to answer to the query made by the Court as to how and in what circumstances proceedings under Section 34 of the Land Revenue Act was initiated suo motu and name of Kanpur Development Authority was recorded. To defend the orders, he submits that as the transfer is hit by Section 154 of the Z.A. Act, land vest in State Government by virtue of provision of Section 167 of the Z.A. Act. On the question of declaration under Section 143 of the Z.A. Act, learned Standing Counsel has failed to make any submissions contrary to the submission made by the learned counsel for the petitioner. 18. It may be noted that when straight question was put to the learned counsel for the Kanpur Development Authority as to what right, title and interest it has in the property, counsel for the Kanpur Development Authority was not in a position to answer the query of the Court. He was asked to show document to indicate that Kanpur Development Authority has got ownership of the land in question or has got the land from the State Government at any point of time, learned counsel for the Kanpur Development Authority kept mum and only reiterated his submission that the writ petition is not maintainable having been filed against the order passed in summary proceedings under Section 34 of the Land Revenue Act. 19. Having heard learned counsel for the parties and having perused the record, this Court finds that there exists order under Section 143 of the Z.A. Act passed on 31.7.1963.The sale-deed dated 28.2.1970 was executed in favour of the petitioner society after declaration of land as Abadi, under Section 143 of the Z.A. Act. After land has been declared Abadi, it goes out of purview of Z.A. Act. Land in question is not ‘land’ within the meaning of Section 3(14) of the Z.A. Act. At this juncture, Court finds it proper to go through the provisions of Section 3 (14), Section 143 and Section 144 of Z.A. Act. Same are reproduced as under : “3 (14). Land in question is not ‘land’ within the meaning of Section 3(14) of the Z.A. Act. At this juncture, Court finds it proper to go through the provisions of Section 3 (14), Section 143 and Section 144 of Z.A. Act. Same are reproduced as under : “3 (14). “Land” (except in Sections 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming.” “143. Use of holding for industrial or residential purposes.—(1) Where a (bhumidar with transferable rights) uses his holding or part thereof for a purpose not connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming the Assistant Collector in charge of the sub-division may, suo motu or on application, after making such enquiry as may be prescribed, make a declaration to that effect. (1-A) where a declaration under sub-section (1) has to be made in respect of a part of the holding the Assistant Collector in charge of the sub-divisions may in the manner prescribed demarcate such part for the purposes of such declaration. (2) Upon the grant of the declaration mentioned in sub-section (1) the provisions of this chapter (other than this section shall cease to apply to the (bhumidhar with transferable rights) with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject. (3) Where a bhumidhar with transferable rights has been granted, before or after the commencement of the Uttar Pradesh Land Laws (Amendment) Act 1978, any loan by the Uttar Pradesh Financial Corporation or by any other Corporation owned or controlled by the State Governemnt on the security of any land held by such bhumidhar, the provisions of this Chapter(other than this section) shall cease to apply to such bhumidhar with respect to such land and he shall thereupon be governed in the matter of devolution of the land by personal law to which he is subject.” “144. Use of land for agricultural purposes.—(1)Whenever any land held by a bhumidhar which is not used for the purposes connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming, has become land used for such purposes, the (Assistant Collector in charge of the sub-division may suo motu or an application, after making such enquiry as may be prescribed), make a declaration to that effect and thereupon the bhumidhar shall, as respects the land, be subject to the provisions of this chapter. (2) Upon the grant of the declaration under sub-section (1) in respect of any land any person other than the bhumidhar in possession of the plot shall - (a) if he holds it under any contract or lease which is inconsistent with any of the provisions of this chapter, be deemed to be an occupant liable to ejectment under Section 209; and (b) if he holds it under any contract or lease which is not inconsistent with any of the provisions of this chapter, be entitled to the rights in the land determined in accordance with the provisions thereof. (3) Any contract or lease referred to in sub-clause (a) of sub-section (2) which is inconsistent with the provisions of the chapter shall, to the extent of the inconsistency, become void with effect from the date of declaration: Provided that any mortgage with possession existing on any such land shall, to the extent of the amount due and secured on such land, be deemed to have been substituted by a simple mortgage carrying such rate of interest as may be prescribed.” 20. A careful reading of Section 143(2) read with Section 3(14) of the Act clearly indicates that after declaration under Section 143 of the Act the provision of Chapter VIII of the Z.A. Act shall cease to apply with respect to land in question. In view thereof restriction imposed by Section 154 of the Act will not be applicable with respect to land in question, which is admittedly an Abadi land. The consequence would be that the transfer made by way of sale-deed dated 28.2.1970 is not void under Section 166 of Z.A. Act and thus the land would not vest in the State Government by virtue of Section 167of the Act. It may be noted that Sections 154, 166 and 167 fall in Chapter VIII of the Z.A. Act. 21. The consequence would be that the transfer made by way of sale-deed dated 28.2.1970 is not void under Section 166 of Z.A. Act and thus the land would not vest in the State Government by virtue of Section 167of the Act. It may be noted that Sections 154, 166 and 167 fall in Chapter VIII of the Z.A. Act. 21. As the land in question goes out of the preview of Z.A. Act by virtue of Section 143 (2) and 3 (14) of the Act, the suo motu proceedings under Section 34 of the Land Revenue Act initiated by the Revenue authorities are clearly without jurisdiction. Admittedly, no proceedings can be initiated under Section 34 of the Land Revenue Act with respect to land which has been declared Abadi, thus orders passed by the revenue authorities under Section 34 of the Land Revenue Act are wholly without jurisdiction. Nonetheless revenue Court had erred in exceeding its jurisdiction in entering into the rights, title and interest of petitioner and the contesting respondent. 22. Proceedings under Section 34 of the Land Revenue Act are summary proceedings and Revenue Court could not have examined the validity of sale-deed executed in favour of the petitioner, the question was beyond its jurisdiction. As the revenue Court has gone beyond its jurisdiction, the instant writ petition is clearly maintainable. 23. It is well-settled that ordinarily orders passed by the mutation Court are not to be interfered as they are in summary proceedings. The exception has been carved out in Division Bench judgement of this Court in Jai Pal (Minor) v. The Board of Revenue U.P. Allahabad and others, 1956 ALJ 807. Exception as laid down by the Division Bench of this Court has been followed in various judgment of this Court including the decision in case of Lal Bachan v. Board of Revenue U.P. Lucknow and others, 2002(93) RD 6 and Puran Singh v. Board of Revenue and others, 2004(1) AWC 853 . Exception as laid down by the Division Bench of this Court has been followed in various judgment of this Court including the decision in case of Lal Bachan v. Board of Revenue U.P. Lucknow and others, 2002(93) RD 6 and Puran Singh v. Board of Revenue and others, 2004(1) AWC 853 . Exception as carved out by the Division Bench of this Court can be categorised as thus : (i) if the order is without jurisdiction ; (ii) if the rights and title of the parties has already been decided by any competent Court and that had been varied by mutation Courts ; (iii) if the mutation had been directed not on the basis of possession or simply on the basis of some title deed but after entering into debate of entitlement to succeed the property touching into merits of rival claim. 24. In the case in hand, three Courts below including the Board of Revenue passed an order touching into the merits of rival claim and,therefore, orders passed by them are wholly without jurisdiction. Thus, the reliance placed by the learned counsel for the respondent No. 1 upon the judgement of Jagdish Narain and others v. Board of Revenue, Lucknow and another, 2007 (1) ADJ 434 ; Bindeshwari v. Board of Revenue and others, 2002 (1) AWC 498 and judgement of Apex Court in Suraj Bhan and others v. Financial Commissioner and others, 2007 (103) RD 116, on the question of maintainability is of no consequence. The judgments relied upon by the learned counsel for the respondent No. 1 are distinguishable in the facts and circumstances of the instant case. 25. It may be noted that Board of Revenue had erred in relying upon the averments as contained in the sale-deed dated 28.2.1970 and recording a finding that land was agriculture land at the time of sale-deed. To recapitulate the declaration under Section 143 of the Z.A. Act has already been made with respect to the land in dispute much prior to the execution of the sale-deed. No declaration whatsoever has been made under Section 144 of the Act that land in question has become land used for agriculture or allied purposes. Thus, the effect of the declaration under Section 143(1) of the Act cannot be taken away. 26. No declaration whatsoever has been made under Section 144 of the Act that land in question has become land used for agriculture or allied purposes. Thus, the effect of the declaration under Section 143(1) of the Act cannot be taken away. 26. Surprisingly enough there is nothing on record to suggest that land in question belong to Kanpur Development Authority or Kanpur Development Authority has any right, title or interest in the property. The three Courts below have also not recorded any finding before entering the name of Kanpur Development Authority in the revenue records. 27. Taking into consideration of all these aspect this Court comes to an inescapable conclusion that the orders impugned passed by the three Courts below are wholly without jurisdiction, the same are liable to be quashed. 28. However, it is made clear that this Court has not decided the right, title and interest of the parties with regard to the land in question as present writ petition arose out of the mutation proceedings. Parties are free to take recourse of proper remedy as available to them for declaration of their rights under law.It is further made clear that any of the observations made above by this Court would not affect the rights of the parties in the pending proceedings or further proceedings, if any. 29. The writ petition, therefore, succeeds and is allowed.