The court affirmed the Board of Revenue's decision, ruling that the Naib Tehsildar acted within jurisdiction and the petitioner's claims were dismissed due to lack of grounds for recall.

JUDGMENT

Chandra Kumar Rai, J.

Heard Mr. Iqbal Ahmad, learned counsel for the petitioner, Mr. B.D. Mishra, learned counsel for respondent nos. 6 to 10, Mr. Mahesh Narayan Mishra, learned Addl. C.S.C. for the state-respondents and Mr. Siraj Hamad Khan, learned counsel for respondent nos. 13 & 14.

2. Brief facts of the case are that dispute relate to succession of one Mahmudul Hasan who expired on 29.10.2017. Respondent nos. 6 & 7 filed an application under Sections 34/35 of the U.P. Revenue Code, 2006 before the Tehsildar, Sirathu, District Kaushambi for recording of their names on the basis of succession. Respondent no.4/Naib Tehsildar vide order dated 14.8.2018, allowed the application filed by respondent nos. 6 & 7 and directed to record the names of respondent nos. 6 & 7 along with Smt. Sarvat Ara, wife of Mahmudul Hasan (petitioner's father), expunging the name of Mahmudul Hasan from the plots of khata nos.191, 192, 189, 188, 176, 1270, 742, 663, 662, 661, 660, 659, 658, 657, 655, 656, 748, 612 and 769 situated in village Sirathu, Pargana Kada, Tehsil Sirathu, District Kaushambi. Against the order of Tehsildar dated 14.8.2018, petitioner filed an appeal before the S.D.O. which was registered as Appeal No.60/2018. Respondent no.3/S.D.O., vide order dated 29.10.2018 allowed the appeal, setting aside the order of the Tehsildar dated 14.8.2018 and remanded the matter back before the Tehsildar to decide the mutation case afresh. Against the order dated 29.10.2018, respondent nos. 6 & 7 filed a revision under Section 210 of the U.P. Revenue Code, 2006 which was registered as Revision No.3298/2018 and the same was allowed by the Board of Revenue vide order dated 4.9.2019, setting aside the order of the S.D.O. dated 29.10.2018. Against the order dated 4.9.2019, petitioner filed a recall application before the Board of Revenue along with stay application. The Board of Revenue vide order dated 9.1.2020 rejected the recall application filed by the petitioner. Respondent no.14/Sakia Bano filed Writ B No.2898/2019 before this Court against the revisional order dated 4.9.2019 which was dismissed by this Court vide order dated 5.12.2019 with observation that petitioner has a remedy to institute the appropriate proceeding for declaration of her right. The instant writ petition has been filed on behalf of the petitioner, challenging the impugned order dated 9.1.2020, passed by the Board of Revenue, rejecting the Recall Application No.2635/2019 filed against the order dated 4.9.2019.

3. This Court vide order dated 5.1.2021 entertained the matter and directed the respondents to file counter affidavit in the mater within a period of 3 weeks. In compliance of the order dated 5.1.2021, counter affidavit has been filed on behalf of respondent nos.6 to 10. Petitioner has filed his rejoinder affidavit also.

4. Counsel for the petitioner submitted that petitioner and respondent no.14 along with other, are born from second wife of Mahamudul Hasan, as such, they are also entitled to be recorded along with respondent nos.6 to 10. He further submitted that against the mutation order, passed by the Naib Tehsildar, appeal filed by the petitioner was allowed and the matter was remanded back before the Tehsildar to decide the mutation case afresh, as such, revision against the remand order passed in the appeal, was not maintainable. He further submitted that in revision, fraud was committed and without any notice/opportunity of hearing to the petitioner, the revision has been allowed and remand order passed in appeal, has been set aside. He also submitted that the recall application filed against the revisional order, has been dismissed in arbitrary manner. He further submitted that both the parties are claiming right on the basis of succession, as such, claim of petitioner cannot be negated in arbitrary manner and without affording opportunity of hearing to the petitioner. He further submitted that the order dated 4.9.2019, passed by the Board of Revenue is