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2024 DIGILAW 1459 (ALL)

Sanjay Gupta v. State of U. P.

2024-05-29

ASHUTOSH SRIVASTAVA

body2024
JUDGMENT : ASHUTOSH SRIVASTAVA, J. 1. Heard Ms. Pooja Talwar, learned counsel for the petitioner, Shri Abhishek Shukla, learned Addl. Chief Standing Counsel appearing for the State-respondents, Shri Saurabh Basu, learned counsel who has put in appearance on behalf of the substituted heirs of the deceased respondent No. 4 and Shri Shashank Tripathi, learned counsel for the proposed respondent No. 5. 2. The writ petition has been filed questioning the legality, propriety and correctness of the order dated 21.4.2009 passed by the Board of Revenue, U.P. Lucknow whereby and whereunder the revision at the instance of the respondent No. 4 assailing the order dated 11.5.2004 passed by the Addl. Commissioner has been allowed and the order of the Addl. Commissioner has been set aside and the matter has been remanded back to the Court of Naib Tehsildar (Bidhnu Area), Tehsil Sadar, District Kanpur Nagar. The challenge has also been laid to the consequential order dated 25.1.2010 passed by the Naib Tehsildar (Bidhnu Area), Tehsil Sadar, Kanpur Nagar whereby and whereunder the PA-11 entry in the name of the petitioner over the plots in dispute has been set aside and the name of the respondent No. 4 has been directed to be recorded over the plots. 3. Ms. Pooja Talwar, learned counsel for the petitioner contends that this Court vide its order dated 7.10.2010 while entertaining the writ petition and issuing notice to the respondent No. 4 had stayed, the effect and operation of the order of the Board of Revenue dated 21.4.2009 and the consequential order of the Tehsildar dated 25.1.2010. An impleadment application has been filed on the strength of a sale deed dated 18.6.2011 executed in favour of one Taufeq Ahmad son of Anees Ahmad, resident of 89/167, Basmandi, Fatehpur, Uttar Fahimabad, District Kanpur Nagar by one Smt. Usha Rani who claimed right, title and interest in the properties subject matter of the mutation case. The impleadment has been sought on the ground that one Dhaniram Jain was the owner and in possession of House No. 80/75, Bansmandi, Cooperganj, Kanpur Nagar measuring 994 square yards. Dhaniram Jain had acquired the said property under a registered sale deed dated 22.11.1983. Dhaniram Jain executed a registered Will dated 5.5.1984 in favour of his daughter-in-law. The impleadment has been sought on the ground that one Dhaniram Jain was the owner and in possession of House No. 80/75, Bansmandi, Cooperganj, Kanpur Nagar measuring 994 square yards. Dhaniram Jain had acquired the said property under a registered sale deed dated 22.11.1983. Dhaniram Jain executed a registered Will dated 5.5.1984 in favour of his daughter-in-law. Smt. Usha Rani Jain bequeathing his entire movable and immovable holdings and mentioning the fact that his son Mahendra Kumar Jain deliberately changed his name as Krishna Bal Gupta. After the death of Dhaniram Jain, Smt. Usha Rani became the absolute owner of the property and her name was mutated over the property. The proposed respondent No. 5 has purchased the property from Smt. Usha Rani Jain vide sale deed dated 18.6.2010. In substance, it is contended that the proposed respondent No. 5 has an interest in the subject matter of the writ petition and shall be affected by the outcome of the writ petition and as such, is a necessary party to the writ petition and is liable to be impleaded. 4. A counter affidavit has been filed by learned counsel for the petitioner controverting the averments in the affidavit filed in support of the impleadment application. In the counter affidavit, the factum of Dhaniram Jain being the owner and possession of the property bearing Municipal No. 80/75, Cooperganj, Bansmandi, Kanpur Nagar is not disputed. It is stated that Dhaniram Jain was the maternal grandfather (Nana) of the petitioner. It is also stated that the property No. 80/75, Cooperganj, Kanpur Nagar is not the subject matter of the writ petition. It has also been stated in the counter affidavit to the impleadment application that Dhaniram had executed registered Will dated 2.1.1987 in favour of the petitioner and no Will dated 5.5.1984 had been executed in favour of Smt. Usha Rani Jain. It is also stated that the petitioner is the son of late Krishna Bal Gupta and Smt. Sharda Devi Gupta. 5. The averments made in the counter affidavit to the impleadment application have not been controverted by filing rejoinder. It is also stated that the petitioner is the son of late Krishna Bal Gupta and Smt. Sharda Devi Gupta. 5. The averments made in the counter affidavit to the impleadment application have not been controverted by filing rejoinder. Taking note of the fact that the averments made in the counter affidavit to the impleadment application have not been rebutted coupled with the facts that the property bearing Municipal No. 80/75, Cooperganj, Bansmandi, Kanpur Nagar is not the subject matter of the writ petition, the Court is not inclined to allow the impleadment application and the same is, accordingly, rejected. 6. Ms. Pooja Talwar, learned counsel for the petitioner addressing the Court on the merits of the writ petition contends that mutation application under Section 34 of the U.P. Land Revenue Act, 1901 was moved by the respondent No. 4, namely, Ram Bal Gupta on 18.9.2001 seeking mutation of his name in the revenue records in respect of the plots in dispute (i.e. Survey Plot No. 1, 5, 7, 8, 9 Ka, 12, 13, 14, 15, 18, 20 and 23) having an area of 7.227 hectare situate at village Gopalpur, Tehsil and District Kanpur Nagar claiming succession in his favour referring to the death of his brother Shri Krishna Bal Gupta, who was stated to have died on 28.5.1978. The mutation case was registered as Case No. 194 of 2001 (Ram Bal Gupta vs. Krishna Bal Gupta). Pursuant to the notices issued, the petitioner appeared in the aforesaid mutation case and filed his objections stating that the name of the petitioner stood already recorded and entered in the revenue records under the order dated 26.8.1986 passed under Section 33A of the U.P. Land Revenue Act, 1901 on the basis of succession being the only son of the recorded tenure holder Krishna Bal Gupta following the death of his father Krishna Bal Gupta on 28.5.1978 and mother Sharda Devi Gupta on 1.10.1980. Based on the objections so raised, the petitioner claimed rejection of the mutation case filed by the respondent No. 4. The Naib Tehsildar vide order dated 4.12.2003 ignoring the objections taken by the petitioner directed the matter to be heard by fixing a date. Based on the objections so raised, the petitioner claimed rejection of the mutation case filed by the respondent No. 4. The Naib Tehsildar vide order dated 4.12.2003 ignoring the objections taken by the petitioner directed the matter to be heard by fixing a date. The order dated 4.12.2003 as well as the mutation proceedings registered as Mutation Case No. 194/2001-02 was assailed in revision by the petitioner, which was registered as Revision No. 198 of 2004 before the Commissioner, Kanpur Division, Kanpur. The Addl. Commissioner (Administration), Kanpur Division, Kanpur vide order dated 11.5.2004 allowed the revision after contest by the respondent No. 4, set aside the order dated 4.12.2003 and closed the mutation proceedings of Case No. 194 of 2001-02 filed at the instance of the respondent No. 4. 7. The order dated 11.5.2004 was challenged by the respondent No. 4 by filing a revision under Section 219 of the U.P. Land Revenue Act, 1901, which was filed beyond time by 1825 days. The memo of revision was not accompanied by any delay condonation application explaining the delay of almost 05 years. The Board of Revenue proceeded to register the revision as Revision No. 2174/LR/08-09 without noticing the defect in the absence of delay condonation application. The revision was subsequently allowed vide order dated 21.4.2009 on an exparte motion even without issuing notices to the petitioner simply stating that the revision had been preferred against an interlocutory order and the same was not maintainable. By order dated 21.4.2009, the order of the Addl. Commissioner dated 11.5.2004 was quashed and the case was remanded to the Trial Court to decide on merits after giving opportunity of hearing to both the parties within two months. 8. The respondent No. 4 pursuant to the order of the Board of Revenue dated 21.4.2009 got the matter decided by the respondent No. 3/Naib Tehsildar (Bidhnu Area), Tehsil Sadar, District Kanpur Nagar again on an exparte motion without issuing notices to the petitioner vide order dated 25.1.2010. The order dated 25.1.2010 as well as the order dated 21.4.2009 have been assailed in the writ petition. 9. Ms. Pooja Talwar, learned counsel for the petitioner vehemently contends that the petitioner is the only son of Shri Krishna Bal Gupta and Smt. Sharda Devi Gupta. Shri Krishna Bal Gupta is stated to have died on 28.5.1978, while Smt. Sharda Devi Gupta is stated to have died on 1.10.1980. 9. Ms. Pooja Talwar, learned counsel for the petitioner vehemently contends that the petitioner is the only son of Shri Krishna Bal Gupta and Smt. Sharda Devi Gupta. Shri Krishna Bal Gupta is stated to have died on 28.5.1978, while Smt. Sharda Devi Gupta is stated to have died on 1.10.1980. Learned counsel for the petitioner has invited the attention of the Court to the Annexure-21, which is the High School Examination Certificate of the year 1980, which reflects that the name of the father of the petitioner is recorded as ‘K.B. Gupta’ and the date of birth of the petitioner is 18.10.1964. 10. Ms. Pooja Talwar, learned counsel for the petitioner further submits that admittedly late Krishna Bal Gupta was the recorded tenure holder of the plots in dispute having total area 7.227 hectare situate at village Gopalpur, Tehsil and District Kanpur Nagar and consequent to the death of his father and mother, the petitioner’s name was entered in the revenue records under P.A. 11 entry. It is also contended that the petitioner is in possession over the disputed plots and is running a dairy farm in the name and style of M/s Classic Agro Diary Farm since 21.12.2001 under a partnership. 11. Ms. Pooja Talwar, learned counsel for the petitioner has assailed the impugned orders primarily on the ground that orders have been passed behind the back of the petitioner without affording any opportunity of hearing. The order dated 21.4.2009 passed by the Board of Revenue has been assailed on the ground that the Board of Revenue committed manifest illegality in entertaining the time barred revision without there being an application to condone the delay in filing the revision. Admittedly, the proceedings before the Addl. Commissioner (Administration), Kanpur Division, Kanpur were contested by the respondent No. 4 and he was very much aware of the order dated 11.5.2004 and in such circumstances, there was absolutely no occasion for the respondent No. 4 to have assailed the order dated 11.5.2004 in a highly time barred revision without praying for condonation of delay. Commissioner (Administration), Kanpur Division, Kanpur were contested by the respondent No. 4 and he was very much aware of the order dated 11.5.2004 and in such circumstances, there was absolutely no occasion for the respondent No. 4 to have assailed the order dated 11.5.2004 in a highly time barred revision without praying for condonation of delay. The consequential order dated 25.1.2010 passed by the Naib Tehsildar (Bidhnu Area), Tehsil Sadar, District Kanpur Nagar has also been passed exparte against the petitioner and the petitioner never appeared in the said proceedings nor filed any Vakalatnama and the alleged Vakalatnama dated 8.10.2009 stated to have been filed before the respondent No. 3 is absolutely forged and fabricated. It is categorically submitted that the petitioner did not sign the said Vakalatnama. 12. Attention of the Court is invited to the Annexure 18 and 19 of the writ petition to demonstrate the fact that complaints dated 20.8.2010 and 25.8.2010 were made to the Bar Council of Uttar Pradesh, Allahabad and to the respondent No. 3 regarding filing of the Vakalatnama of Shri Umesh Chandra Tripathi, Advocate. It is, accordingly, contended that the entire proceedings at the instance of the respondent No. 4 for getting his name mutated over the plots in dispute, which admittedly belonged to the father of the petitioner, were totally unwarranted, fabricated and fictitious to grab the property of the petitioner inherited by him through his father, the recorded tenure holder, namely, Krishna Bal Gupta. It is, accordingly, prayed that the impugned order dated 21.4.2009 passed by the Board of Revenue and consequential order dated 25.1.2010 passed by the Naib Tehsildar (Bidhnu Area), Tehsil Sadar, District Kanpur Nagar is liable to be set aside and the order dated 11.5.2004 passed by the Addl. Commissioner (Administration), Kanpur Division, Kanpur rejecting the mutation case instituted by the respondent No. 4, is liable to be upheld. 13. A counter affidavit has been filed by the contesting respondent No. 4 by submitting that Krishna Bal Gupta who was the recorded Bhumidhar of the plots in dispute had died issueless. Sharda Devi Gupta wife of Krishna Bal Gupta happened to be the sister of Mahendra Kumar Jain and in fact Mahendra Kumar Jain is the father of Sanjay Gupta @ Sanjay Jain (the petitioner herein), who got his name changed to raise the claim on the properties of the Krishna Bal Gupta. Sharda Devi Gupta wife of Krishna Bal Gupta happened to be the sister of Mahendra Kumar Jain and in fact Mahendra Kumar Jain is the father of Sanjay Gupta @ Sanjay Jain (the petitioner herein), who got his name changed to raise the claim on the properties of the Krishna Bal Gupta. It is categorically submitted that the Sanjay Gupta is neither the biological nor adopted son of Krishna Bal Gupta and Sanjay Jain is disguised as Sanjay Gupta. Since, Krishna Bal Gupta, the recorded tenure holder of the plots in question had died issueless and consequent to the death of his wife also, the respondent No. 4 was entitled to inherit the plots in dispute and the mutation application was rightly moved before the Naib Tehsildar (Bidhnu Area), Tehsil Sadar, District Kanpur Nagar. It is also contended that the revision preferred by the petitioner against the order dated 4.12.2003 was not maintainable inasmuch as the order dated 4.12.2003 was merely an interlocutory order and the mutation case had not been decided by the Naib Tehsildar (Bidhnu Area), Tehsil Sadar, District Kanpur Nagar and in such view of the matter, the Addl. Commissioner (Administration), Kanpur Division, Kanpur manifestly erred in allowing the revision. The Board of Revenue was justified in setting aside the order of the Addl. Commissioner (Administration), Kanpur Division, Kanpur dated 11.5.2004. 14. Shri Saurabh Basu, learned counsel representing the contesting respondent No. 4 has also submitted that the petitioner claiming himself to be Sanjay Gupta is in fact Sanjay Jain, as is borne out from an FIR giving rise to Case Crime No. 477 of 2007, under Sections 420, 424, 467, 468, 471, 506 IPC, Police Station Kotwali, Kanpur Nagar lodged by Smt. Usha Rani Jain wife of late Devendra Kumar Jain (sister-in-law) of Mahendra Kumar Jain i.e. Chachi of the petitioner Sanjay Jain wherein it has been alleged that Sharda Devi wife of Krishna Bal Gupta met with an accident in the year 1957-58 and during operation her ovary was detached from her body to save her life. The recorded date of birth of the petitioner in the hospital record is 19.10.1963 son of Mahendra Kumar Jain. The photostat copy of the FIRs and birth certificate of Sanjay Jain have been filed on record as Annexure-5 to the counter affidavit. 15. The recorded date of birth of the petitioner in the hospital record is 19.10.1963 son of Mahendra Kumar Jain. The photostat copy of the FIRs and birth certificate of Sanjay Jain have been filed on record as Annexure-5 to the counter affidavit. 15. It is also contended that throughout the petition, petitioner has not specifically denied the fact that he is not biological son of Mahendra Kumar Jain and his wife Smt. Raj Rani Jain or that he is son out of wedlock of Krishna Bal Gupta and his wife Sharda Devi Gupta. It is also contended that on the death of Smt. Raj Rani Jain wife of Mahendra Kumar Jain, the biological mother of the petitioner on 8.8.2002, a publication was made in the newspaper Amar Ujala Kanpur where petitioner Sanjay Jain was shown as aggrieved son of Smt. Raj Rani along with other relatives. Similarly, publication was made in the daily newspaper Danik Jagran, Kanpur edition on 1.11.1995 where Sanjay Jain was shown aggrieved son of Mahendra Kumar Jain. The said publications have also been brought on record as Annexure-6. Certain other documents have been filed to establish the fact that the petitioner is not the son of Krishna Bal Gupta. 16. Shri Saurabh Basu, learned counsel for the respondent No. 4 based on the aforesaid submits that the proceedings of the present writ petition emanates from a challenge to the interlocutory order dated 4.12.2003 passed by the Naib Tehsildar in a revision before the Addl. Commissioner, which was not maintainable. The writ petition has been filed by a non existent person who has fraudulently impersonified himself as Sanjay Gupta who is actually Sanjay Jain son of Mahendra Kumar Jain and grandson of Dhani Ram Jain and is in fact the nephew of Sharda Devi Gupta wife of Krishna Bal Gupta. The writ petition further challenges the order dated 25.1.2010 passed by the Tehsildar and the order dated 21.4.2009 passed by the Board of Revenue by which the matter was remanded to the Naib Tehsildar and in fact, the order dated 25.1.2010 should have been challenged before the Revisional Court under Section 219 of the U.P. Land Revenue Act, 1901. The writ petition further challenges the order dated 25.1.2010 passed by the Tehsildar and the order dated 21.4.2009 passed by the Board of Revenue by which the matter was remanded to the Naib Tehsildar and in fact, the order dated 25.1.2010 should have been challenged before the Revisional Court under Section 219 of the U.P. Land Revenue Act, 1901. It is also contended that the writ petition in fact arises out of mutation proceedings and is not maintainable in view of the law laid down by this Court in Amritansh Pandey vs. State of U.P. Writ (B) No. 2620 of 2023, Smt. Kalawati vs. Board of Revenue, 2022 (4) ADJ 578 and Faqruddin vs. Tajuddin, 2008 (8) SCC 12 . It is thus contended that orders impugned do not call for any interference by this Court and the writ petition deserves to be dismissed. 17. Shri Abhishek Shukla, learned Addl. Chief Standing Counsel, in opposition to the writ petition, contends that the writ petition arises out of mutation proceedings and may not be entertained by this Court and the parties be relegated to establish their rights over the plots in dispute and seek declaration thereof in appropriate proceedings. 18. In rejoinder, Ms. Pooja Talwar, learned counsel for the petitioner reiterates her submissions that the petitioner is the only son of his father Krishna Bal Gupta and mother Smt. Sharda Devi Gupta, who breathed their last on 28.5.1978 and 1.10.1980, respectively. The allegation made on behalf of the respondent No. 4 that petitioner’s mother late Smt. Sharda Devi Gupta had no uterus and she was incapable of giving birth, is absolutely false and fabricated and the manufactured story has no basis or material whatsoever. The said plea does not find mention in the counter affidavit of the respondent No. 4 and has been pleaded on behalf of the respondent No. 4 for the very first time during the course of final arguments. In any case, the FIR stated to have been lodged under Sections 420, 424, 467, 468, 471, 506 IPC giving rise to the Case Crime No. 477 of 2007 was inquired into and a closure report was submitted. The protest petition filed against the closure report culminated in an order permitting a complaint to be filed. Subsequently, the complaint itself was dismissed. The protest petition filed against the closure report culminated in an order permitting a complaint to be filed. Subsequently, the complaint itself was dismissed. It is also contended that in civil suit, bearing Original Suit No. 989 of 1998 (Smt. Usha Rani Jain vs. Smt. Raj Rani Jain and others) in which Smt. Raj Rani Jain had filed a detailed written statement stating that the petitioner Sanjay Gupta is not her son but the son of late Smt. Sharda Devi Gupta and late Krishna Bal Gupta, who were her sister-in-law and brother-in-law. The said suit has been dismissed in default vide order dated 24.8.2013 by First Addl. Civil Judge (Sr. Div.) Kanpur Nagar. Petitioner’s name, parentage and date of birth stands certified by the High School Examination certificate of the year 1980 issued by the Board of High School and Intermediate Education, U.P. Allahabad of 25.7.1980, which goes a long way to establish the factum that petitioner is the son of Krishna Bal Gupta and Smt. Sharda Devi Gupta. The petitioner has passed his High School Examination from St. Francis Xavier’s High School, Ashok Nagar, Kanpur. His application for admission in the said school was signed by his father Krishna Bal Gupta. It is contended that petitioner’s maternal grandfather late Dhani Ram Jain during his life executed a last Will and Testament dated 2.1.1987 in favour of the petitioner which is valid and in force, in which the petitioner has been described as the son of the testator’s daughter Smt. Sharda Devi Gupta and son-in-law Krishna Bal Gupta. 19. It is submitted that the documentary evidence produced by the petitioner clearly established the fact that the petitioner is in fact Sanjay Gupta, is not Sanjay Jain as claimed by the respondents. The petitioner is continuing in continuous possession over the plots in dispute and the respondent No. 4 has never had possession over the land in question and no rights can be claimed by the respondent No. 4 over the properties left behind by late Krishna Bal Gupta. The mutation application at the instance of the respondent No. 4 dated 18.9.2001 was highly belated inasmuch as the death of Krishna Bal Gupta took place as far back as in the year 1978 and his wife expired on 1.10.1980, but the mutation by the respondent No. 4 was sought only in the year 2001. The mutation application at the instance of the respondent No. 4 dated 18.9.2001 was highly belated inasmuch as the death of Krishna Bal Gupta took place as far back as in the year 1978 and his wife expired on 1.10.1980, but the mutation by the respondent No. 4 was sought only in the year 2001. The Naib Tehsildar (Bidhnu Area), Tehsil Sadar, District Kanpur Nagar did not pay any heed to the objections of the petitioner taken on the maintainability of the mutation proceedings and the revision before the Addl. Commissioner which was rightly allowed and the Board of Revenue under the impugned order manifestly erred in setting aside the order of the Addl. Commissioner (Administration), Kanpur Division, Kanpur. Consequently, the Tehsildar also manifestly erred in passing the consequential order dated 25.1.2010. 20. I have heard learned counsel for the parties and have perused the record. 21. From the pleadings of the parties and respective submissions made by learned counsels for the parties, the following issues call for consideration by this Court: “(1) Whether the instant writ petition assailing the impugned orders dated 21.4.2009 and 25.1.2010 passed in summary mutation proceedings is maintainable? (2) Whether the mutation application at the instance of the respondent No. 4 registered as Mutation Case No. 194 of 2001 (Ram Bal Gupta vs. Krishna Bal Gupta) was maintainable? (3) Whether the Revision No. 198 of 2004 filed by the petitioner assailing the order of the Naib Tehsildar dated 4.12.2003 before the Commissioner, Kanpur Division, Kanpur was maintainable under Section 219 of the Land Revenue Act, 1901? (4) Whether the revision filed by the respondent No. 4 assailing the order dated 11.5.2004 of the Addl. Commissioner, Kanpur Division, Kanpur could be entertained by the Board of Revenue without condoning the delay and allowed exparte without issuing notices to the petitioner vide order dated 21.4.2009? (5) Whether the consequential order dated 25.1.2010 passed by the Naib Tehsildar could have been passed ex-parte without issuing notices to the petitioner? (6) Whether the question regarding the petitioner being the son of the recorded tenure holder or not could be gone in the mutation proceedings?” 22. Now the Court proceeds to deal with the above issues. 23. So far regarding the maintainability of the writ petition against the order passed under mutation proceedings is concerned, the Court is of the opinion that ordinarily a writ petition would not be maintainable. Now the Court proceeds to deal with the above issues. 23. So far regarding the maintainability of the writ petition against the order passed under mutation proceedings is concerned, the Court is of the opinion that ordinarily a writ petition would not be maintainable. The opinion is based on the premise that mutation proceedings are summary in nature. Orders are passed on the basis of possession and no substantive rights are decided. Mutation entries are only for fiscal purposes and do not create or extinguish title over land nor such entries have any presumptive value. The question of maintainability of a writ petition against orders passed by the Revenue Authorities in mutation proceedings was dealt with extensively by a co-ordinate Bench of this Court in the case of (Smt. Kalawati vs. The Board of Revenue and others) Writ (B) No. 295 of 2022 decided on 5.4.2022 wherein Para 40 of the aforesaid decision exceptions have been carved out and it has held that writ petitions may be entertained against orders passed in mutation proceedings 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.” 24. Now, testing the orders impugned on the anvil of the exceptions carved out, the Court finds that a challenge to the said orders has been laid on the ground that the orders having been passed in violation of the principles of natural justice and as such, are amenable to writ jurisdiction. The orders dated 21.4.2009 and 25.1.2010 have been passed without hearing the petitioner. The orders dated 21.4.2009 and 25.1.2010 have been passed without hearing the petitioner. The Court finds no substance in the submissions of Shri Saurab Basu, learned counsel for respondent No. 4 that the writ petition is not maintainable and is accordingly, rejected. The writ petition is held maintainable. 25. Now, coming the issue No. 2 regarding the maintainability of the Mutation Case No. 194 of 2001 (Ram Bal Gupta versus Krishna Bal Gupta), the Court finds that the name of the petitioner stood recorded over the plots in dispute consequent to the death of Krishna Bal Gupta and Smt. Sharda Devi (father & mother) as is evident from the Khatauni extract filed on record as Annexure-1 to the writ petition. This mutation order is stated to have been passed on 26.8.1986 under Section 33-A of the U.P. Land Revenue Act, 1901. The mutation application at the instance of respondent No. 4, Ram Bal Gupta, who claims to be the real brother of Krishna Bal Gupta, was moved in the year 2001 only after more than 23 years of the death of Krishna Bal Gupta and his wife Smt. Sharda Devi. The Court further finds that the respondent No. 4, in his application for mutation had not prayed for setting aside the mutation order existing in favour of the petitioner and merely sought mutation of his name on the basis of succession. In the opinion of the Court, the mutation application at the instance of the respondent No. 4 was not maintainable as the name of the petitioner was already recorded over the plots and the respondent No. 4 was required to show that succession had already opened i.e. the recorded person i.e. petitioner is either dead or under law presumed to be dead. The mutation application registered as Case No. 194 of 2001 was being moved after 23 years of opening of the succession on the death of the tenure holder Krishna Bal Gupta in the year 1978 or on the death of his wife on 1.10.1980 cannot be countenanced as the respondent No. 4 is the real brother of the deceased Krishna Bal Gupta. 26. As regards the 3rd Issue, learned counsel for the contesting respondent No. 4 has submitted that the order dated 4.12.2003 was an interlocutory order inasmuch as nothing was decided and only a date had been fixed for further consideration of the respective pleas. 26. As regards the 3rd Issue, learned counsel for the contesting respondent No. 4 has submitted that the order dated 4.12.2003 was an interlocutory order inasmuch as nothing was decided and only a date had been fixed for further consideration of the respective pleas. The order was not revisable and the Addl. Commissioner, Kanpur Division, Kanpur erred in law in entertaining the revision and allowing the same in exercise of powers under Section 219 of the Land Revenue Act, 1901. Ms. Pooja Talwar, learned counsel for the petitioner, however, submits that the revision against the order dated 4.12.2003 was maintainable as it fell within the scope of Section 219 of the Land Revenue Act, 1901, particularly within the ambit of “order passed or proceeding held” as appearing in the Section 219 of the Land Revenue Act, 1901. 27. Section 219 of the U.P. Land Revenue Act, 1901 reads as under: “219. Revision: (1) The Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, may call for the record of any case decided or proceeding held by any revenue Court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purpose of satisfying himself as to the legality or propriety of the order passed or proceeding held and if such subordinate revenue Court appears to have: (a) exercised a jurisdiction not vested in it bylaw. (b) failed to exercise a jurisdiction so vested. (c) acted in the exercise of jurisdiction illegally or with material irregularity, the Board or the Commissioner or the Additional Commissioner or the Collector or the Record Officer, or the Settlement Officer, as the case may be, pass such order in the case as he thinks fit. (2) If an application under this section has been moved by any person either to the Board, or to the Commissioner, or to the Additional Commissioner, or the Collector or to the Record Officer or to the Settlement Officer, no further application by the same person shall be entertained by any other of them. [Substituted by U.P. Act No. 20 of 1997]” 28. From the perusal of Section 219 quoted here-in-above, the power of Revision is vested in the Authorities mentioned in section i.e. Board of Revenue, Commissioner, or Addl. [Substituted by U.P. Act No. 20 of 1997]” 28. From the perusal of Section 219 quoted here-in-above, the power of Revision is vested in the Authorities mentioned in section i.e. Board of Revenue, Commissioner, or Addl. Commissioner, the Collector, Record Officer or the Settlement Officer, as the case may be, in respect of a case decided or proceedings held by a Court Subordinate to it. The words “case decided or proceedings held” appearing in the section appears to be borrowed from the Code of Civil Procedures Section 115 as amended in the Uttar Pradesh. The grounds of interference under this Section 219 is a reproduction from it. In the opinion of the Court, the words “Case decided” or “proceedings held” cannot be equated with “Suit” or “Appeal” but are much wider. They include various orders touching the merits in the course of the Trial; other than purely interlocutory order or matter. A perusal of the Section 219 of the Land Revenue Act, 1901 reveals that it consists of two parts, the first part which prescribes the conditions on which the jurisdiction of the Authorities (i.e. the Commissioner, Kanpur Division, Kanpur in the case at hand) arises in a case decided or proceedings held by any subordinate revenue Court in which no appeal lies or where an appeal lies but has not been preferred. The second part sets out the circumstances in which the jurisdiction may be exercised. The expression “case decided or proceedings held” have not been defined under the Act, the Code of Civil Procedure or the General Clauses Act. In the opinion of the Court, the expression includes a proceeding in which the jurisdiction of the Court is invoked for the determination of some claim or right legally enforceable and must be construed in the light of the jurisdiction conferred upon such authorities. To interpret the expression, “Case decided or proceedings held” as an entire proceeding only and not as a part of proceeding would be to impose a restriction upon the exercise of power conferred under Section 219 which is in the nature of superintendence and keeping the subordinate authorities within their bounds. To interpret the expression, “Case decided or proceedings held” as an entire proceeding only and not as a part of proceeding would be to impose a restriction upon the exercise of power conferred under Section 219 which is in the nature of superintendence and keeping the subordinate authorities within their bounds. However, the Authority exercising powers under Section 219 of the Land Revenue Act is not obliged to exercise its jurisdiction when a case is decided or proceeding held by a subordinate Authority and the conditions in Clause (a), (b) or (c) under Section 219 are satisfied. The exercise of jurisdiction is discretionary. 29. Now, coming to the case at hand, the Court finds that the memo of the revision assailing the order dated 4.12.2003 has been brought on record. A perusal of the grounds of the revision reveals that the revision was preferred against the order entertaining and continuing the mutation proceedings after 23 years when mutation had already been ordered in favour of the petitioner and his name stood recorded in the revenue records. The entry was continuing in the record of rights i.e. Khatauni, Kisan-Bahi etc. for the last 23 years and the conditions for proceeding with the mutation case on the mutation report of the respondent No. 4 was not made out and continuance of the proceedings were totally unwarranted. The objections were very much on record yet the Tehsildar without considering the same proceeded with the mutation case and in such circumstances, it can safely be said that the Tehsildar acted illegally and with material irregularity is not rejecting the mutation case. The Clauses (a), (b) and (c) of Section 219 of the U.P. Land Revenue Act, 1901 stands clearly attracted. 30. In view of above, this Court holds that the Revision No. 198 of 2004 filed by the petitioner assailing the order dated 4.12.2003 was maintainable under Section 219 of the Land Revenue Act. 31. So far as the issue Nos. 4, 5 & 6 are concerned, the revision filed by the respondent No. 4 assailing the order dated 11.5.2004 passed by the Addl. Commissioner, Kanpur Division, Kanpur is concerned, the Court finds that the revision was filed after the delay of 05 years. The Board of Revenue proceeded to entertain the revision even without condoning the delay or issuing notice to the petitioner. Commissioner, Kanpur Division, Kanpur is concerned, the Court finds that the revision was filed after the delay of 05 years. The Board of Revenue proceeded to entertain the revision even without condoning the delay or issuing notice to the petitioner. In the opinion of the Court, the revision could not have been entertained by the Board of Revenue after a lapse of 05 years without there being any application to condone the delay and the Board of Revenue condoning the delay. The revision could not have been allowed by the Board of Revenue without affording an opportunity of hearing to the petitioner. 32. A co-ordinate Bench of this Court in the case of Ram Anugrah and others vs. Deputy Director of Consolidation, Allahabad and others, 2007 (102) RD 736 has held that a belated revision could not have been allowed without condoning the delay/deciding the delay condonation application. This Court is in full agreement with the view expressed in the aforesaid decision. 33. The order dated 21.4.2009 passed by the Board of Revenue is not sustainable and deserves to be set aside. The Board of Revenue under the impugned order dated 21.4.2009 had remitted the matter back to the Tehsildar to decide the case afresh on merits after giving opportunity to the parties within two months. After remand, the Tehsildar proceeded to pass the consequential order dated 25.1.2010 without hearing the petitioner. 34. The Court is satisfied from the materials on record that the petitioner was not granted any opportunity to participate in the proceedings after remand. The participation has been manipulated. Even otherwise, the order dated 25.1.2010 besides being ex-parte has dwelled into the question of title of the parties. Mutation Courts are not possessed with the power and competence to deal with intricate issues of title as in the present case like a regular Court. For adjudication of various factual disputes touching into the title of the parties, the remedy of either of the parties is to approach the competent authority by filing a suit for declaration of their rights under Section 229-B of the U.P.Z.A. & L.R. Act, 1950 or under Section 144 of the U.P. Revenue Code, 2006, as the case may be. For adjudication of various factual disputes touching into the title of the parties, the remedy of either of the parties is to approach the competent authority by filing a suit for declaration of their rights under Section 229-B of the U.P.Z.A. & L.R. Act, 1950 or under Section 144 of the U.P. Revenue Code, 2006, as the case may be. Since, the name of the petitioner was recorded over the plots in dispute vide order dated 26.8.1986 and he is in possession over the same, the respondent No. 4 may approach the competent Authority to get his rights declared in respect of the plots in dispute. 35. In the above conspectus, the impugned order dated 21.4.2009 passed by the Board of Revenue in Revision No. 2174/LR/08-09 (Ram Bal Gupta vs. Sanjay Kumar Gupta) as also the consequential order dated 25.1.2010 passed by the Naib Tehsildar (Bidhnu Area), Tehsil Sadar, District Kanpur Nagar, U.P. deciding the Mutation Case No. 194 of 2001-02 (Ram Bal Gupta versus Krishna Bal Gupta) mutating the name of the respondent No. 4 over the plots in dispute is set aside and the order dated 11.5.2004 passed by the Addl. Commissioner, Kanpur Division, Kanpur in Revision No. 198 of 2004 (Sanjay Gupta versus Shri Ram Bal Gupta and another) is upheld. The writ petition stands allowed. The mutation entry of the petitioner over the plots in dispute is restored. The respondent No. 4 shall be at liberty to establish his rights over the plots in dispute by resorting to proceedings under Section 229-B of the U.P.Z.A. & L.R. Act, 1950 or under Section 144 of the U.P. Revenue Code, 2006, as the case may be. Parties to bear their own costs.