JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Mr. Sanjay Kumar Mishra, learned counsel for the petitioner, Sri Mohan Yadav, learned counsel for respondent Nos. 3 and 4 and Sri Shailesh Srivastava, learned Standing Counsel for the State. 2. Brief facts of the case are that one Shri Sahai had three sons, namely, Baijnath, Bhagwat and Ghunuwa. The family tree of Sri Sahai is as under: Bhagwat son of Sri Sahai had no male issue. Smt Daswi wife of Bhagwat inherited the share of Bhagwat. Smt Shikali and Smt. Ramkali inherited the share of Smt. Daswi being her daughter. Sri Jag Nandan claimed right as a husband of Smt. Ramkali. Smt. Shivkali alleged to execute a sale-deed in favour of respondent No. 3, 4, 6, 7 & 8 and Jag Nandan alleged to execute a sale-deed in favour of petitioner. After death of Smt. Ramkali, an application dated 20.3.1978 for mutation was filed by Jag Nandan being her husband which was objected by respondent No. 2/Shivkali stating that her sister Ramkali has not expired rather she left the village, as such, she is entitled to be recorded being real sister of Ramkali. One objection was also filed at appellate stage on behalf of Deokali (widow of Jag Mohan) guardian of Raj Karan, Jai Karan, Maiyadeen (respondent No. 6, 7 & 8) stating that they stating that they are entitled to be recorded in place of Ramkali on the basis of succession. Naib Tahasildar vide order dated 16.8.1978 ordered to record the name of Jag Nandan son of Dharmpal in the place of Ramkali being her husband. The order of Naib Tahasildar dated 16.8.1978 was challenged in Appeal by Shivkali under Section-210 of U.P. Land Revenue Act, 1901 which was initially allowed on 27.9.1979 and case was remanded back before Tahasildar and again matter was decided by the Tehsildar. The order of Tehsildar was again challenged in appeal under under Section 210 of the U.P. Land Revenue Act by respondent no. 2/Shivkali which was decided vide order dated 7.7.1980, directing that the name of respondent no. 2/Shivkali be recorded and Jag Nandan was directed to refund the money to Shiv Mohan (petitioner) regarding the sale of the disputed property made by him. 2/Shivkali which was decided vide order dated 7.7.1980, directing that the name of respondent no. 2/Shivkali be recorded and Jag Nandan was directed to refund the money to Shiv Mohan (petitioner) regarding the sale of the disputed property made by him. Against the order dated 7.7.1980, passed by the Sub Divisional Officer a recall/review was rejected on 25.2.1981 accordingly a revision was filed under Section 218 of the U.P. Land Revenue Act before the Commissioner which was registered as Revision No. 3/15/17 of 1983-84 which was heard by the Addl. Commissioner, Jhansi Division, Jhansi who sent a reference before the Board of Revenue vide order dated 12.5.1985 for setting aside the order dated 7.7.1980 and sending the matter back before the Tehsildar to decide the mutation case in the light of the provisions contained under Section 172 of the U.P. Z.A. & L.R. Act. In pursuance of the reference sent by the Addl. Commissioner dated 12.5.1985, Board of Revenue has registered the case as Reference Case No. 92(L.R.) 1984-85 and vide order dated 26.5.1990, allowed the reference in part, setting aside the part of the order dated 7.7.1980 by which the S.D.O. has directed to Jag Nandan to refund the money to Shiv Mohan with respect to the plot in dispute and maintained the other part of the order by which the case of respondent no. 2/Shiv Kali was ordered to be considered in view of the provisions contained under Section 172 of the U.P. Z.A. & L.R. Act but with modification that there is no question of further reconsideration of the dispute by Tehsildar rather Shivkali is to be recorded in view of the provisions contained under Section 172 of the U.P. Z.A. & L.R. Act. Hence, this writ petition, challenging the order dated 16.5.1990, passed by respondent no. 1/Board of Revenue. 3. This Court has entertained the matter on 10.2.1993 and stayed the dispossession of the petitioner from the land in dispute in pursuance of the impugned orders of the revenue authorities. On issuance of notice, private respondents have put in appearance. 4. Counsel for the petitioner submitted that the case of mutation set up by Jag Nandan was rightly allowed by Tahsildar vide order dated 16.8.1978 in view of the provisions contained under Section 174 of the U.P. Z.A. & L.R. Act. On issuance of notice, private respondents have put in appearance. 4. Counsel for the petitioner submitted that the case of mutation set up by Jag Nandan was rightly allowed by Tahsildar vide order dated 16.8.1978 in view of the provisions contained under Section 174 of the U.P. Z.A. & L.R. Act. He further submitted that the order of mutation dated 16.8.1978 has been illegally interferred with by the appellate court/revisional court. He also submitted that the petitioner is claiming right on the basis of sale deed executed in his favour by Jag Nandan in whose favour the order of mutation was passed by the Tehsildar on 16.8.1978. He further submitted that order passed in the summary proceeding can not be interfered with rather appropriate proceeding can be initiated in regular side. He further submitted that the order passed by the Tehsildar dated 16.8.1978 was based on the evidence on record as well as the provisions contained under the U.P. Z.A. & L.R. Act was also considered as such, the same cannot be interferred with in exercise of appellate/revisional jurisdiction. He also submitted that the impugned order dated 16.5.1990 passed by the Board of Revenue be set aside and the order passed by the Tehsildar dated 16.8.1978 be maintained. He further placed reliance on the decision of the Hon’ble Apex Court and that of this Court in Vanketeshwar and Another vs. Deputy Director of Consolidation and Others, 2003 (95) RD 504; Komal vs. Deputy Director of Consolidation, Deoria, 2000 (0) Supreme (SC) 1155 and Mainia vs. Deputy Director of Consolidation, 1989 (0) Supreme (SC) 386 in support of his argument. 5. On the other hand, Sri Mohan Yadav, learned counsel for respondent nos. 3 & 4 and Sri Shailesh Srivastava, learned standing counsel for the state submitted that the writ petition arises out of the mutation proceeding, as such, the same is not maintainable. They further submitted that the case of mutation set up by Jag Nandan shall be considered according to the provisions contained under Section 172 of the U.P. Z.A. & L.R. Act, as such, the Jag Nandan (husband of Ramkali) will no get any right in the matter as husband of Ramkali. They also submitted that in view of the provisions contained under Section 172 of the U.P. Z.A. & L.R. Act, the Shivkali has got the right to be recorded in place of Ramkali. They also submitted that in view of the provisions contained under Section 172 of the U.P. Z.A. & L.R. Act, the Shivkali has got the right to be recorded in place of Ramkali. They finally submitted that no interference is required in the matter and the writ petition is liable to be dismissed. 6. I have considered the arguments advanced by learned counsel for the parties and perused the records. 7. There is no dispute about the fact that with respect to succession of Ramkali, daughter of deceased Bhagwat and Daswai, Jag Nandan has applied for mutation under Section 34 of the U.P. Land Revenue Act, being husband of Ramkali in view of the provisions of succession contained under Section 174 of the U.P.Z.A & L.R Act. There is also no dispute about the fact that the Tehsildar has ordered for recording the name of Jag Nandan in place of Ramkali but the Board of Revenue, ultimately held that succession will be governed according to the provisions of Section 172 of the U.P. Z.A. & L.R. Act, as such, Jag Nandan cannot be recorded in place of Ram Kali. 8. In order to appreciate the controversy involved in the matter, the provisions contained under Sections 172 & 174 of the U.P. Z.A. & L.R. Act will be relevant which are quoted hereunder: 172. Succession in the case of a woman holding an interest inherited as a widow, mother, daughter: (1) When a bhumidhar, or asami who has after the date of vesting, inherited an interest in any holding: (a) as a widow, widow of a male lineal descendant, in the male line of descent, mother or father's mother dies, marries, abandons or surrenders such holding or part thereof. (b) as a daughter, son's daughter, sister or half-sister being the daughter of the same father as the deceased [marries] dies, abandons or surrenders such holding or part thereof the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male bhumidhar, or asami. (b) as a daughter, son's daughter, sister or half-sister being the daughter of the same father as the deceased [marries] dies, abandons or surrenders such holding or part thereof the holding or the part shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male bhumidhar, or asami. (2) Where a bhumidhar who has before the date of vesting inherited an interest in any holding as a [widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased]: (a) dies, and such bhumidhar was on the date immediately before the said date an intermediary of the land comprised in the holding or held the holding as a fixed rate tenant, or an exproprietary or occupancy tenant in Avadh or as a tenant on special terms in Avadh: (i) she was in accordance with the personal law applicable to her entitled to a life estate only in the holding, the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male intermediary or tenant aforesaid. (ii) she was in accordance with the personal law applicable to her entitled to the holding absolutely the holding shall devolve in accordance with the table mentioned in Section 174. (b) dies, abandons or surrenders and in the case of a widow, widow of a male lineal descendant in the male line of descent, mother, father's mother, marries such bhumidhar on the date immediately before the said date held the holding otherwise than as an intermediary or tenant referred to in clause (a), the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 171) of the last male tenant. (3) The provisions of sub-section (1) mutatis mutandis apply to an asami who inherited the holding before the date of vesting. (4) Nothing in sub-section (1) shall apply to a person succeeding to an interest in any holding under the provisions of Section 174. 174. (3) The provisions of sub-section (1) mutatis mutandis apply to an asami who inherited the holding before the date of vesting. (4) Nothing in sub-section (1) shall apply to a person succeeding to an interest in any holding under the provisions of Section 174. 174. Succession t a woman holding an interest otherwise - When a bhumidhar, or asami (other than a bhumidhar or asami mentioned in Section 171 or 172) who is a woman dies, her interest in the holding shall devolve in accordance with the order of succession given below: (a) son, son's son, son's son's son, pre-deceased son's widow and [pre-deceased son's pre-deceased son's widow and unmarried daughter] in equal share per stirps: Provided first that the nearer shall exclude the remoter in the same branch: Provided secondly, that a widow, who has remarried, shall be excluded: (b) husband. (d) married daughter. (e) daughter's son. (ee) father. (eee) mother. (f) brother. (g) brother's son. (h) sister. (i) sister's son. 9. The perusal of the provisions demonstrates that if the female tenure holder after date of vesting is inheriting an interest in any holding then the succession will be governed by the provisions contained under Section 172 of the U.P. Z.A. & L.R. Act. 10. In the instant matter, Ramkali is inheriting interest in the holding from her deceased father and subsequently deceased mother, as such, the succession will be governed by the provisions contained under Section 172 of the U.P. Z.A. & L.R. Act.The right of petitioner will depend upon the right of Jag Nandan, if any. 11. Hon’ble Apex Court in the Case reported in Ram Jivan vs. Smt. Phoola (Dead) by LRs. and others, (1976) 1 SCC 852 has considered the dispute of succession in the light of the provisions contained under Section 172 & 174 of U.P.Z.A & L.R Act,1950 and held that Section 174 of the U.P.Z.A & L.R Act would apply to such cases where a widow does not inherit an interest from her husband but would include cases where the female tenant had an independent interest, namely, an interest which she possessed in the holding as her self acquired property, her stridhan or the like. Paragraph No. 13 of the judgment rendered in Ram Jivan (Supra) are relevant for perusal which is an under: “13. Paragraph No. 13 of the judgment rendered in Ram Jivan (Supra) are relevant for perusal which is an under: “13. For these reasons, therefore, we are satisfied that the origin of the title of Smt Menda lay in inheritance of the estate of her husband however limited or precarious it may have been. This being the position, the succession to the estate of Smt Menda would have to be governed by the provisions of Section 172 of the Abolition Act which has applied the provisions of Section 171 regarding the order of succession. In the order of succession given in Section 171 of the Abolition Act brother's son is a preferential heir. It might be mentioned here that by virtue of the amendment of the Abolition Act in 1954 the married daughter was also introduced as an heir before brother's son. But this was not the position prior to 1954 when the married daughter was completely excluded from inheritance. It is also not disputed that Smt Phoola was a married daughter on the death of Smt Menda. In these circumstances, therefore, the holding held by Smt Menda would devolve on Ramadhin's brother's son, namely Jit and thereafter on his heir who is now continuing the present proceedings. Thus the Tahsildar, Maharajgunj was fully justified in mutating the name of Jit in respect of the lands in dispute instead of Smt Phoola. The revenue courts as also the Division Bench of the High Court had taken a legally erroneous view in holding that the mode of succession would be governed by Section 174 of the Abolition Act as the interest left by Smt Menda was her self-acquired property.” 12. In the instant matter there is nothing on record about the basic year entry during consolidation operation except that in the judgment of Tahsildar it is mentioned that Chak were carved out in the name of Ramkali and Shivkali during consolidation operation. 13. The case law cited by learned Counsel for the petitioner are having different facts & circumstance as such the same are not applicable in the instant matter rather the ratio of law laid down by Hon’ble Apex Court in Ram Jivan (Supra) shall be applicable in the facts & circumstance of the instant matter. 14. 13. The case law cited by learned Counsel for the petitioner are having different facts & circumstance as such the same are not applicable in the instant matter rather the ratio of law laid down by Hon’ble Apex Court in Ram Jivan (Supra) shall be applicable in the facts & circumstance of the instant matter. 14. In view of the provisions quoted above, there is no need to further remand the matter to examine the issue again in respect to the mutation proceeding under Section 34 of the U.P. Land Revenue Act, 1901 which is going on for the last more than 45 years. It is held that Jag Nandan will not get any right being husband of Ramkali rather Shivkali will get right in the place of Ramkali in view of the provisions contained under section-172 of U.P.Z.A & L.R Act and the consequences will accordingly follow. 15. Considering the entire facts and circumstances, no further interference is required in the matter against the impugned judgment. 16. The writ petition is, accordingly, dismissed. 17. Needless to say that judgment/orders passed in summary proceeding are always subject to adjudication of dispute, if any, by regular Court.