IMPORTANT POINT
The Tehsildar's order in mutation proceedings is appealable under Section 35(2) of the Uttar Pradesh Revenue Code, not revisable under Section 210.

JUDGMENT :

Ashutosh Srivastava, J.

1. Heard Shri Vinod Kumar Pandey, learned counsel for the petitioner, learned Standing Counsel for the State respondents 1 to 4. Shri Harish Chandra Singh, learned counsel has put in appearance on behalf of the private respondent no. 5 while Shri Amish Kumar Srivastava, learned counsel has appeared for respondent nos. 6 & 7.

2. The writ petition arises out of mutation proceedings and the legality, propriety and correctness of the order dated 28.11.2022 passed by the Board of Revenue in Revision No. 1642 of 2022 (Mukesh Das vs. Hari Das Chela Siyaram Das) has been questioned. By the impugned order the preliminary objection of the petitioner regarding the maintainability of the Revision in view of the provisions of Section 35 (2) of the Uttar Pradesh Revenue Code 2006 has been rejected and further date has been fixed for hearing on the admission of the Revision.

3. The dispute relates to Gata numbers 19 Kh, 137, 102 B, 106, 136 Kha, 19 K, 105 Kh, 151, 170 Kh, contained in Khata No. 83 of the village Bheeti Mafi, Pargana Mahli Purab, Tehsil Dhanghata, District Sant Kabir Nagar, total area 2.3550 Hectare as also property part of Khata No. 44 i.e. Gata No. 102A area 6.1820 Hectares. On the basis of a forged Will dated 23.02.2017 the respondent nos. 5, 6 and 7 proceedings for mutation under Section 34/35 of the Uttar Pradesh Revenue Code, 2006 were initiated on 02.12.2019 and mutation Case No. 201917650104438 was registered before the Tehsildar respondent no. 4. By an order dated 18.05.2022, the respondent no. 4 held that the mutation involves question of succession under personal law, which can only be decided by a Competent Court of law and the Court of the Tehsildar cannot decide the controversy in summary proceedings of mutation and accordingly, the respondents 5, 6 and 7 were relegated to the Competent Civil Court to establish their rights and thereafter approach the Mutation Court.

4. The order dated 18.05.2022 was challenged by the respondent no. 5 before the Board of Revenue in Revision and the Board of Revenue under the impugned order rejected the preliminary objection of the petitioner regarding the maintainability of the Revision and fixed the same for hearing on admission.

5. Learned counsel for the petitioner argues that in substance the Tehsildar under the order dated 18.05.2022 declined to pass orders on the Mutation Application of the respondent no. 5, 6 & 7 and the order was appealable under Section 35 (2) of the Uttar Pradesh Revenue Code, and in such view of the matter the Board of Revenue manifestly erred in entertaining the Revision at the instance of the respondent no. 5 after rejecting the specific objection of the petitioner as regards maintainability of the Revision. It is contended by learned counsel for the petitioner that the order dated 18.05.2022 admittedly is an order passed under Section 35 (1) (c) of the Uttar Pradesh Revenue Code, 2006 as the mutation case was disputed and the Tehsildar failed to decide the dispute. An appeal against such an order is provided under Section 35 (2) before the Sub Divisional Officer, which the respondent no. 5 did not avail and bye passing the said provision preferred a Revision before the Board of Revenue. It is also argued that the Revision under Section 210 of the Revenue Code, 2006 was not maintainable on the face of it as Section 210 provides that Revision would lay only when no appeal lies. Learned counsel for the petitioner has drawn the attention of the Court to the distinction between the provisions of Section 210 of the Uttar Pradesh Revenue Code, 2006 and Section 333 of the UPZA & LR Act, 1950 which provides that a Revision may lay where an Appeal has been provided but not filed. He thus submits that the impugned order of the Board of Revenue cannot be sustained and deserves to be set aside and the writ petition allowed as prayed.

6. Counter and rejoinder affidavits have been exchanged between the parties. Counter affidavit on beh