N.L Ganguly, J.:— The petitioner challenged the orders dated 10.7.1992 and 18.1.1989 passed by the Board of Revenue, U.P and Sub-Divisional Magistrate, Gyanpur Distt. Varanasi and prayed for quashing of the said orders. The petitioner pleaded that he is the Bhumidhar of plot No. 48 area 1 bigha 18 dhoors in village Pure Bahuria, Vaida Khas, Taluka Kodh Distt. Varanasi. The opposite party No. 3 moved application in 1987 under Sections 33/39 of Land Revenue Act for mutating his name in the said plot stating that he had purchased the land from the petitioner in 1967. It was stated in the application for mutation that during consolidation proceedings his name was recorded in Akarpatra 45 but the same was not carried through in the revenue courts. The name of the respondent No. 3 does not appear in the village records also. The mutation application was contested by the petitioner on the ground that his name continued recorded in the revenue records and during the consolidation proceedings also and thereafter the petitioner's name continues over the land in question. The petitioner denied that at any point of time during the consolidation proceedings, the name of the opposite party No. 3 was recorded. The petitioner also contended that before the alleged sale-deed in favour of respondent No. 3 in 1967, no permission was taken for sale of the land. The sale deed was fictitious and was never executed by the petitioner. The Sub-Divisional Magistrate after obtaining the report from the Naib Tahsildar passed order dated 18.1.1989 He directed that the name of the respondent No. 3 be recorded/mutated in the revenue record on the basis of the order of Consolidation Officer dated 13.8.1988 as apparent from CH Form No. 45. The name of the petitioner was directed to be expunged and name of respondent No. 3 was allowed to be impleaded.

2. The learned counsel for the petitioner submitted that the village was denotified under Section 52 of the U.P Consolidation of Holdings Act 18 years before and the opposite party initiated proceedings for mutation of his name after the long period. It was argued that there was no record in CH. Form No. 23 and there have been no proceedings before the authorities concerned on the basis of which CH Form No. 45 could be produced. The learned counsel specifically stated that on enquiry made by him from the office of the Officer Incharge of Record Room, it was replied that there was no case No. 55 of 1968 recorded in the Goswara register. The mutation application of the opposite party No. 3 was allowed and the petitioner being aggrieved, filed a revision before the Commissioner, Varanasi Division, Varanasi.

3. The learned Commissioner by his order dated 2.1.1990 recommended the Board of Revenue; to set aside the order of the S.D.M and remand the case as per order of the Commissioner. The application for review moved by the opposite party No. 3 was rejected. The reference made to the Board of Revenue was decided on 10.7.1992 The Addl. Commissioner while deciding the revision observed that the order of the mutation and correction of record is wholly based on the entry of the CH. Form No. 45. There was no copy of the order warranting justification of such order nor the file was available. The Addl. Commissioner observed that the original record from the office of the Consolidation Authorities ought to have been summoned, but there was no attempt on the part of the opposite party No. 3 to summon the record of the said case or misalband register or examine any of the responsible person from the said office. The Board of Revenue without setting aside the finding of the Addl. Commissioner, rejected the reference made by the Commissioner. The opposite party No. 3 have put in appearance and filed counter-affidavit, which is on record.

4. In the counter-affidavit, the opposite party No. 3 mentioned the decisions reported in Lala Krishna Chand v. DM. Dehradun . 1956 ALJ 509. Smt. Lakshmati v. Board of Revenue . 1984 RD 378. and Lekh Raj v. Board of Revenue . 1981 R.D 18..

5. Shri G.N Verma, learned counsel for the respondent No. 3 submitted that the writ petition was not maintainable since it relates to mutation proceedings. The learned counsel for the respondent No. 3 submitted that the sale deed executed by the petitioner in 1967 was duly mutated in the records prepared during the consolidation operations in the village and CH. Form No. 45 was prepared on the basis of the consolidation proceedings. Since the name of the respondent No. 3 was omitted to be recorded in the revenue record, on the basis of CH. Form No. 45, the mutation application was filed. The opposite party No. 3 filed the certified copy of the order of the consolidation Court dated 29.8.1968 in Case No. 55 of 1968 under Section 12 of the U.P Consolidation of Holdings Act to show that in a regular proceedings of the consolidation, the said order dated 29.8.1968 was passed and the name of the opposite party was recorded. Since the name of the opposite party was not carried over in the revenue record after denotification under Section 52 of the Consolidation operations, the application for mutation on the basis of the consolidation entries was made by the opposite party No. 3.

6. After hearing the learned counsel for the parties, the point for consideration arises as to whether the order in proceedings for mutation could be challenged under Art. 226 of the Constitution. This is also the preliminary objection raised by Sri G.N Verma. Learned counsel for both the parties referred to a case reported in Jai Pal v. Board of Revenue.4 Sri Verma submitted that orders passed on, application under Section 34 or the U.P Land Revenue Act simply decides the question as to whether the name of the person should be entered in the records of rights. The record of rights is primarily maintained for revenue purposes and entry thereon has reference only to possession. Such an entry does not ordinarily conferred upon the person in whose favour it is made any title to the property in question and his right to establish his title thereto is expressly reserved by Section 40(3) of the Act. The Division Bench in view of the said facts that it merely recorded the name of a person only for revenue purposes that was open to be challenged in appropriate manner before the Court, as provided in Section 40(3) of the Act.

7. Sri G.N Verma placed reliance on Lekh Raj v. Board of Revenue . 1981 RD. 18. which also says that order passed in mutation proceedings where name of opposite party No. 3 was recorded by the revenue court, was not to be adjudicated under Art. 226 of the Constitution, as there existed equally efficacious remedy of regular suit to the aggrieved party. In the said case, the petitioner Lekh Raj and Devi Ram had moved application for mutation on the basis of a gift deed, allegedly executed by Sukhraj. The execution of the gift deed was denied and the claim of the other side was on the basis of succession and possession. Sri G.N Verma, further cited a decision reported in Nathu Singh v. Collector, Banda . 1986 R.DH 34.. In that case, mutation application was submitted claiming mutation on the basis of a registered sale deed. The objection was filed that the sale deed was never executed. Hence the sale deed was invalid. In the said judgment, the learned Single Judge was pleased to remand the case to the court below on the ground that the writ petition could not be rejected only on the ground that it arises out of mutation order. In the said case the mutation court had declined to decide the mutation proceedings on the ground that civil suit in respect of the property in question was already pending. The learned Single Judge observed that the lower revenue courts had wrongly interpreted the judgment of the High Court given in the matters arising out of the mutation proceedings. It was not the purport of the High Court's order in writ petition arising out of mutation cases that mutation court could not proceed to decide the mutation case on the ground that regular civil proceedings were proceeded. In that circumstances, the learned Single Judge was pleased to remand the case to the mutation court for decision about the mutation of the names. This Judgment is of no assistance for deciding the present controversy.

8. In the present case, as already mentioned, it was not a case of simple mutation of the name of the respondent No. 3 on the basis of the sale deed. The said deed is said to be dated 10.7.1967 allegedly executed by the petitioner in favour of the respondent No. 3. The fact that the sale deed was executed by the petitioner has been denied vehemently. The said sale deed is claimed to have been placed before the consolidation authorities is 1968 and the name of the respondent No. 3 was recorded as owner on the basis of the said sale-deed over the plot in question. Had that been the simple case based on that mutation of names in consolidation proceedings was made in 1968 soon after the execution of the sale-deed and on the basis of the said consolidation entries on CH. Form No. 45, the name of the opposite party No. 3 continued to be recorded in the revenue records thereafter denotification of village under Section 52 of the Act continuously, there was no difficulty in refusing to entertain the writ petition challenging the mutation entries under Art. 226 of the Constitution. In the present case, the opposite party No. 3 admittedly had moved application for mutating the name in the revenue record after about 18 years of the sale deed and denotification of the village under Section 52 of the Consolidation of Holdings Act. The petitioner pleaded that the alleged sale deed was never executed by him and the order of the Consolidation Court mutating the name of the opposite party in proceedings under Section 12 of the U.P.C.H Act is wholly fictitious as there is no consolidation Case No. 55, as mentioned in the certified copy of the order of the mutation in the consolidation proceedings. Thus, it was not a pure and simple case of mutating the name of the opposite party No. 3 on the basis of the sale-deed, but the opposite party No. 3 claimed to get his name mutated on the basis of the mutation order in 1968 made by the Consolidation Authorities in proceedings Section 12 of U.P.C.H Act. This makes a sea of difference and the preliminary objection of the learned counsel for the respondent that the writ petition is to be dismissed on the ground of alternative remedy is devoid of merits. This Court is not to shut its eyes and be a party in perpetuating injustice. If a person sleeps over his right for a period of 18 years and do not look to the revenue records prepared after consolidation for about 18 years, cannot be permitted to say that he was asking mutating of his name on the basis of certain record/sale deed which was not disputed at all. In the present case, the existence of the case No. 55 of 1968 under Section 12 of U.P.C.H Act itself is under cloud and seriously disputed.

9. After rejecting the preliminary objection raised by Sri G.N Verma, the Court felt the necessity of summoning the original record of Case No. 55 of 1968 under Section 12 of U.P.C.H Act from the Revenue Record Room of Gyanpur, Sub Division of the then Varanasi District. After number of orders passed by this Court, the Officer Incharge of the Revenue Record Room Sri Hari Prasad Tripathi, who is also Dy. Collector/Sub-Divisional Magistrate, Gyanpur appeared before the Court. His statement was recorded by me in the presence of the counsel for the parties on 31.1.1995 The statement of Sri Hari Prasad Tripathi is on record. The witness stated on oath that he thoroughly searched the records and the goswara register maintained at his office and there was no entry about Case No. 55 of 1968 under Section 12 of C.H Act., Amrit Lal v. Sri Dhar, Pure Bharwa, Pargana Bhadohi Tahsil Gyanpur. There was no such entry in any of the misilband record nor any such record was available in the record room. After the statement of Sri Hari Prasad Tripathi, S.D.M, the genuineness of the certified copy of the order of the Consolidation Officer in Case No. 55 of 1968 under Section 12 of the Act itself becomes doubtful. It would be doing injustice to dismiss this writ petition on the ground of alternative remedy. After it has become clear that the basis of the claim for mutation of the name of opposite party No. 3 i.e the order of the Consolidation Officer under Section 12 of the Act in 1968 when apparently becomes doubtful and not believable, such a certified copy is of no avail for passing of the orders for mutation. The alleged sale-deed of 1967, thus, was not given effect to and mutated for about 18 years. It would be too much to believe that the opposite party No. 3 bonafide proceeded to seek mutation of his name. The Court if examines this controversy otherwise, i.e the petitioner be asked to seek redress about the continuation of his name in the revenue record which is said to be alternative remedy, there would be a great legal hurdle in the way to challenge a sale-deed after 18 years of its alleged execution, which would be barred by limitation after three years from the date of such execution, in view of the above conclusions I over-rule the preliminary objection. After hearing the learned counsel for the parties and perusing the order of the Board of Revenue, Annexure-5 to the writ petition, for reasons discussed above, I am of the view that the order of the Board of Revenue dated 10.7.1992 is wholly without jurisdiction and liable to be quashed. The order of the learned Addl. Commissioner dated 2.1.1990 is perfectly just and in accordance with law. In view of the discussions made above, the order of the trial court dated 18.1.1989, Annexure-2 and judgment dated 10.7.1992 Annexure-5 by Board of Revenue U.P Op. party No. 1 to the writ petition are quashed.

10. The writ petition is allowed with costs. The respondents No. 3 may seek any other remedy, if available according to law before the appropriate court.

11. Petition Allowed.