JUDGMENT : 1. Heard Mr. Om Prakash Pandey, learned counsel for the petitioner, Mr. Adya Prasad Tiwari, learned counsel for the respondent no.2 and learned standing counsel for respondent no.1. 2. Service of notice upon respondent nos. 3 to 5 has been deemed sufficient under order of this Court dated 26.10.2017. 3. The brief facts of the case are that plot no.130, total area 0.453 hectare, situated in village Hata, Tahasil-Bansgaon, District Gorakhpur was recorded as bhumidhari of respondent nos. 3 to 5. A sale deed was alleged to be executed on 4.4.2008 by respondent nos. 3 to 5 in favour of petitioner in respect of 0.56 decimal of plot no.130, the sale deed was registered on 3.6.2008. Another sale deed was alleged to be executed on 12.5.2008 by respondent nos. 3 to 5 in favour of respondent nos. 2 in respect to 0.56 decimal of plot no.130. Petitioner filed an application under Section 34 of the U.P. Land Revenue Act, 1901 for mutation of his name in revenue record in the place of his vendor (respondent nos. 3 to 5) on the basis of sale deed dated 4.4.2008 / 3.6.2008 in respect of plot no. 130, area .56 decimal. Respondent no.2 has also filed an application for mutation of her name in the place of vendor (respondent nos. 3 to 5) on the basis of sale deed dated 12.5.2008 in respect of plot no.130, area .56 decimal. On 30.5.2008, respondent nos. 3 to 5 (vendor of petitioner as well as respondent no.2) filed Civil Suit No.455/2008 for cancellation of sale deed alleged to be executed on 12.5.2008 in favour of respondent no.2. Naib Tahsildar vide order dated 19.8.2010 allowed the Mutation Case no.657 filed by petitioner and ordered to record the name of petitioner in the place of respondent nos. 3 to 5 (vendor) as co-tenure holder of plot no.130, area .56 decimal along with respondent nos. 3 to 5 (vendor). Respondent no.2 filed an appeal under Section 210 of the U.P. Land Revenue Act before Sub-Divisional Officer against the order dated 19.8.2010 which was dismissed by Sub-Divisional Officer vide order dated 9.8.2016. 3 to 5 (vendor) as co-tenure holder of plot no.130, area .56 decimal along with respondent nos. 3 to 5 (vendor). Respondent no.2 filed an appeal under Section 210 of the U.P. Land Revenue Act before Sub-Divisional Officer against the order dated 19.8.2010 which was dismissed by Sub-Divisional Officer vide order dated 9.8.2016. Respondent no.2 challenged the order dated 9.8.2016 through revision under Section 219 of the U.P. Land Revenue Act, 1901 before respondent no.1 which has been allowed by respondent no.1 vide order dated 7.11.2016, setting aside the orders dated 9.8.2016 & 19.8.2010 and matter was remanded back before court of concern Tahsildar to consolidate both the mutation cases and decide the same afresh on merit after opportunity to lead evidence as well as hearing to both parties. Hence, this writ petition on behalf of petitioner. 4. This writ petition was entertained on 6.4.2017 and following interim order dated 6.4.2017 was passed by this Court:- “Learned standing counsel has accepted notice on behalf of the first respondent. Issue notice to respondents no.2 to 5. All the respondents shall file counter affidavit within four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter. List thereafter. It is sought to be urged that no application was moved by the respondent under Section 192-A of Uttar Pradesh Land Revenue Act, 1901 for consolidation of the pending cases, therefore, the revisional court exceeded its jurisdiction by setting aside the order dated 19 August 2010 and 9 August 2016 passed by the Tehsildar and appellate Court, respectively, pursuant thereof, name of the petitioner which was recorded in the revenue record in proceedings under Section 34 of the Uttar Pradesh Land Revenue Act, 1901 would stand expunged in view of the impugned order. Submission requires consideration. Till the next date of listing, the effect and operation of the order dated 7 November 2016 pased by the first respondent-Board of Revenue, Uttar Pradesh, Lucknow in Revision No. Rev/2030/2016/Gorakhpur (Smt. Subhawati vs. Akhilesh Singh and other) shall be kept in abeyance only to the extent setting aside the order dated 19 August 2010 passed by the Nayab Tehsildar, Bansgaon, Gorakhpur and order dated 9 August 2016 passed by the Sub Divisional Magistrate, Bansgaon, Gorakhpur.” 5. The interim order dated 6.4.2017 passed by this Court remained in operation till the pendency of the writ petition before this Court. The interim order dated 6.4.2017 passed by this Court remained in operation till the pendency of the writ petition before this Court. Respondent no.2 has put in appearance through her counsel and has filed her counter affidavit along with an application for vacation of interim order. Petitioner has filed his rejoinder affidavit to the counter affidavit filed by respondent no.2. 6. Counsel for the petitioner submitted that mutation case filed by petitioner on the basis of sale deed dated 4.4.2008 in which respondent no.2 has filed her objection on 25.11.2008 and the Tahasildar has allowed the mutation case of petitioner vide order dated 19.8.2010, after affording full opportunity of hearing to respondent no.2 directing to record the name of petitioner on the basis of sale deed executed by respondent nos. 3 to 5 in favour of petitioners, as such, the ground mentioned in the impugned order that respondent no.2 was not afforded opportunity of hearing, cannot be accepted. He further submitted that respondent no.2 has not filed any application before Tahasildar under Section 192 or 192-A of the U.P. Land Revenue Act for transfer or consolidation of cases, as such, the second ground given by respondent no.1 for allowing the revision that Tahasildar should first consolidate both the cases and thereafter decide the mutation case, is also wrong and liable to be set aside. He further submitted that vendor of both the sale deeds have accepted the sale deed of petitioner and denied any execution in favour of respondent no.2 that is why respondent nos. 3 to 5 have instituted Civil Suit No.455 of 2008 for cancellation of sale deed, alleged to be executed in favour of respondent no.2 even in the proceeding under Section 34 of the U.P. Land Revenue Act, the vendor have denied any execution in favour of respondent no.2 and accepted the execution in favour of petitioner, as such, the impugned order passed by respondent no.1 is wholly illegal and without jurisdiction. He further submitted that according to the provisions contained under Section 47 of the Registration Act, 1908, the sale deed of petitioner will be prior, as such, the same was rightly accepted by Tahasildar and mutation case of petitioner was rightly allowed. 7. He further submitted that according to the provisions contained under Section 47 of the Registration Act, 1908, the sale deed of petitioner will be prior, as such, the same was rightly accepted by Tahasildar and mutation case of petitioner was rightly allowed. 7. In order to appreciate the argument of learned counsel for the petitioner, the perusal of Section 192-A of the U.P. Land Revenue Act, 1901, Section 47 of the Registration Act, 1908 and Section 68 of the Indian Evidence Act, 1872 will be relevant which are as follows:- Section 192-A of the U.P. L. and Revenue Act, 1901 “[192A. Consolidation of cases. -Where more cases than one involving substantially the same question for determination and based on the same cause of action are pending in one or more court they shall, on application being made by any party to the court to which the court or courts concerned are all subordinate, be consolidated in one court and decided by a single judgment. Such cases may be filed direct in the superior court.]” Section – 47 of the Registration Act “47. Time from which registered document operates.— A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.” Section 68 of the Indian Evidence Act “68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]” 8. On the point of Section 47 of the Registration Act, 1908, counsel for the petitioner placed reliance upon judgment of the Apex Court as well as of this Court which are as follows:- (i) 2002(2) Supreme 59 , Gurbax Singh vs. Kartar Singh and Others (ii) 2018 (143) RD 215 ,Gausul Azam vs. State of U.P. and Others. 9. On the point of scope of writ petition under Article 226 of the Constitution of India in matter arising out of Section 34 of the U.P. Land Revenue Act, counsel for petitioner placed reliance upon the following judgment of this Court:- (i) 2012 (115) RD 187, Saumya Co-operative Housing Society, Allahabad vs. State of U.P. and Others. 10. On the other hand, counsel for the respondent no.2 submitted that respondent nos. 3 to 5 executed sale deed in respect to plot in dispute on 12.5.2008 in favour of respondent no.2 and petitioner alleged that respondent nos. 3 to 5 executed sale deed in respect to same plot in his favour on 4.4.2008 which was registered on 3.6.2008 but Tahasildar has proceeded to decide the mutation application filed by the petitioner without consolidating the mutation application filed by respondent no.2 which is in violation of the provisions contained under Section 192-A of the U.P. Land Revenue Act, 1901. He further submitted that proper opportunity of hearing was not afforded to the respondent no.2 while passing the mutation order in favour of petitioner. He further submitted that respondent no.1 has rightly allowed the revision filed by respondent no.2 and remanded the matter before Tahasildar to decide the mutation application filed by petitioner afresh after consolidating the mutation application filed by respondent no.2, as such, no interference is required against the remand order passed by respondent no.1. He further submitted that writ petition filed by petitioner arises out of mutation proceedings under Section 34 of the U.P. Land Revenue Act, 1901, is not maintainable, in view of the law laid down by this Court, reported in 2022 (0) Supreme (All) 281, Smt. Kalawati vs. Board of Revenue and Others. He placed reliance upon paragraph nos.39 & 40 of the judgment which is as follows:- “39. He placed reliance upon paragraph nos.39 & 40 of the judgment which is as follows:- “39. The rule of exhaustion of statutory remedies has been held to be a rule of policy, convenience and discretion and existence of an alternate remedy would not divest the High Court of its powers under Article 226 which may be exercised in appropriate cases. 40. Having regard to the foregoing discussion the exceptions under which a writ petition may be entertained against orders passed in mutation proceedings would arise where : (i) the order or proceedings are wholly without jurisdiction; (ii) rights and title of the parties have already been decided by a competent court, and that has been varied in mutation proceedings; (iii) mutation has been directed not on the basis of possession or on the basis of some title deed, but after entering into questions relating to entitlement to succeed the property, touching the merits of the rival claims; (iv) rights have been created which are against provisions of any statute, or the entry itself confers a title by virtue of some statutory provision; (v) the orders have been obtained on the basis of fraud or misrepresentation of facts, or by fabricating documents; (vi) the order suffers from some patent jurisdictional error i.e. in cases where there is a lack of jurisdiction, excess of jurisdiction or abuse of jurisdiction; (vii) there has been a violation of principles of natural justice. 11. I have considered the argument advanced by the learned counsel for the parties and perused the records. 12. There is no dispute about the fact that respondent nos. 3 to 5 were recorded tenure holder of disputed plot. Petitioner applied for mutation on the basis of registered sale deed executed by respondent nos. 3 to 5 on 4.4.2008 which was registered on 3.6.2008 and respondent no.2 applied for mutation on the basis of registered sale deed executed by respondent nos. 3 to 5 on 12.5.2008. Mutation application filed by petitioner was registered as Mutation Case No.657 before Naib Tahasildar and respondent no.2 filed her objection on 25.11.2008 to the mutation application filed by petitioner and Naib Tahasildar vide final order dated 19.8.2010 allowed the mutation application filed by petitioner. Respondent no.2 filed restoration application against the order dated 19.8.2010 passed by Naib Tahasildar and has also filed appeal under Section 210 of the U.P. Land Revenue Act, 1901. Respondent no.2 filed restoration application against the order dated 19.8.2010 passed by Naib Tahasildar and has also filed appeal under Section 210 of the U.P. Land Revenue Act, 1901. The appeal filed by respondent no.2 was dismissed by Sub-Divisional Officer vide order dated 9.8.2016. In appeal, respondent no.5 (vendor) was impleaded on his application and respondent no.5 filed affidavit in appeal that they have executed sale deed in respect of disputed plot in favour of petitioner. Respondent nos. 3 to 5 (vendor) have filed Civil Suit No.455 of 2008 for cancellation of sale deed executed in favour of respondent nos. 3 to 5 which is pending for adjudication before civil court. Respondent no.2 filed revision against the appellate order dated 9.8.2016 which has been allowed, setting aside the order of Naib Tahasildar and Sub-Divisional Officer and remanded the matter before Naib Tahasildar for fresh consideration of mutation application filed by both parties. 13. Since the vendor of the sale deed in question has admitted the execution of sale deed in favour of petitioner and denied execution in favour of respondent no.2, as such, prima facie case of execution of sale deed is in favour of petitioner. So far as consolidation of cases as provided under section 192A of U.P. Land Revenue Act,1901 is concerned, the Section very specifically provides that it is the duty of party to file application to consolidate the cases in one court to be decided by a single judgment. In the present case it was the duty of respondent no.2 to file the application under section 192A of the U.P. Land Revenue Act 1901 but he failed to do so, as such the point of the non-compliance of section 192A of the Land Revenue Act, 1901 is not available to the respondent no.2. So far as point of opportunity of hearing to the respondent no.2 is concerned, the same has been afforded to respondent no.2 as on the mutation application filed by the petitioner, an objection was filed by respondent no.2 on 25.11.2008 and the mutation case was decided after about 1 year 9 months i.e. on 19.8.2010, as such, it can not be said that Naib Tahasildar has decided the matter within short span of time. 14. 14. So far as scope of interference under Article 226 of the Constitution of India against the order passed in the summary proceeding under section 34 of U.P. Land Revenue Act,1901 is concerned, Paragraph No.17 of the judgment relied upon by the counsel for petitioner in case of Saumya Co-operative Housing Society (Supra) is relevant which is as follows: “17. Coming to the issue of jurisdiction, suffice it to say that even in matters of mutation this Court in the case of Lal Bachan V. Board of Revenue, U.P. Lucknow and others, has held that a writ petition would be maintainable against orders which are without jurisdiction or are otherwise perverse. As would be seen presently, the present writ petition also falls within the same category inasmuch as the Sub-Divisional Magistrate, while passing the order dated 25.08.2008 has failed to record any provision which may empower him to act and proceed contrary to the directions of the collector contained in the order dated 24.10.2007.” 15. In the present case the impugned revisional order suffers from perversity as well as illegal exercise of revisional jurisdiction against the correct exercise of jurisdiction by Naib Tahasildar under section 34 of U.P. Land Revenue Act, 1901, as such, the present writ petition will come under the exception mentioned in the judgment of Smt. Kalawati (supra) and would be maintainable under Article 226 of the Constitution of India. 16. The Appellate Court has rightly dismissed the petitioner's appeal on the point of opportunity of hearing to the respondent no.2, on the point of the section 47 of the Registration Act, 1908 as well as on the point of applicability of section 192A of U.P. Land Revenue Act, 1901, accordingly the exercise of Revisional Jurisdiction by respondent no.1 was wholly illegal and can not be sustained in the eye of law. 17. 17. There is one more aspect of the case that vendor (respondent nos.3 to 5) have filed a civil suit for cancellation of sale deed executed in favour of respondent no.2 and even in the proceeding under section 34 of the U.P Land Revenue Act,1901 vendor (respondent nos.3 to 5) have admitted the execution of sale deed in favour of petitioner, as such, the mutation order passed in favour of petitioner in the year 2010 can not be examined again and again, there should be finality of the summary proceeding and the rightful person be recorded in the revenue records which will be subject to the proceeding of regular court. 18. Considering the ratio of law laid down by Apex Court as well as by this Court as mentioned above, as well as considering the entire facts and circumstances of the case the impugned order dated 7.11.2016 passed by respondent no.1-Board of Revenue, Uttar Pradesh at Lucknow, can not be sustained and is liable to be set aside, the same is hereby set aside. The writ-petition stands allowed. 19. No order as to costs.