Fakir Hasan and others v. Noorbano, under Section

1. Heard Shri Virendra Kumar Shukla, learned counsel for the petitioners as well as learned Standing Counsel for respondents no. 1 and 2.

2. In the light of proposed order, notice to respondent no. 3, is dispensed with.

3. By means of present writ petition, the petitioners have prayed the following reliefs:- "a. issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 05.06.2025, passed by opposite party no.1 in Revision No. 1855 of 2025, Fakir Hasan and others Vs. Noorbano, under Section 210 of U.p. Revenue Code, 2006 and impugned judgement and order dated 03.10.2022 passed by Naib Tehsildar, Tikaitnagar, Tehsil- Sirauligauspur, District Barabanki in Case No. RST/2910/2021, Fakir Hasan and others Vs. Smt. Mustakeeman, under Section 34 of U.P. Revenue Code, 2006 and confirmed the order dated 02.09.2022 passed by opposite party no.2, as contained in Annexures No.1, 2 and 3 to this Writ Petition. b. issue a writ, order or direction i n the nature of Mandamus commanding the opposite parties not to disturb the peaceful possession of the petitioners over the Gata No. 71, 109 Mi., 110 Mi., 111 and 194, situated at Village Bhaisuriya, Pargana Dariyabad, Tehsil Sirauligauspur, District Barabanki, in the interest of justice."

4. The dispute in the present writ petition pertains to the mutation of property of Gata No. 71, 109 Mi., 110 Mi., 111 and 194, situated at Village Bhaisuriya, Pargana Dariyabad, Tehsil Sirauligauspur, District Barabanki. It has been submitted by learned counsel for the petitioners that the aforesaid land was recorded in the name of Mustakeeman w/o Muharram Ali, who is the mother of the petitioners. On the basis of succession, the petitioners moved an application under Section 34 of U.P. Revenue Code, 2006 on 22.12.2021, for mutating the name of the petitioners and deleting the name of the mother. On the basis of succession and possession which was demonstrated by the petitioners before the Naib Tehsildar, Tikaitnagar, Tehsil- Sirauligauspur, District Barabanki, his application was allowed, by means of order dated 2.9.2022. Against the order dated 2.9.2022, the respondent no.3- Noor Bano W/o Mohammad Israil, who is the sister of the petitioners, moved an application for recall of the order dated 2.9.2022 stating that it was an exparte order having been passed without opportunity of hearing to the applicant therein. The Naib Tehsildar by means of the order dated 3.10.2022, stayed the operation of the order dated 2.9.2022 and also restrained the petitioners from alienating the said land and issued notices to the petitioners and fixed the case for hearing on 21.10.2022.

5. The petitioners being aggrieved by the order dated 3.10.2022, had preferred a revision before the Board of Revenue, which has been rejected by means of order dated 5.6.2025, and accordingly, in the present petition the petitioners have challenged the validity of order dated 5.6.2025, passed by the Board of Revenue as well as the order dated 3.10.2022, passed by the Naib Tehsildar, Tikaitnagar, Tehsil Sirauligauspur, District Barabanki.

6. Learned counsel for the petitioners submits that the order dated 3.10.2022 was passed without affording any opportunity of hearing to the petitioners, therefore, the same is illegal, arbitrary and is liable to be set aside. He submits that it is for the same reason that even revisional Authority has not considered the grounds taken by the petitioners, and accordingly has assailed the validity of both the orders.

7. Learned Standing counsel has submitted that the order dated 2.9.2022 was passed on the application of the petitioners where neither the respondent no.3 was made a party nor she participated in the said proceedings and therefore, there is no infirmity in the order dated 3.10.2022. He further submits that in view of the order dated 3.10.2022, notices sent to the petitioners who, instead of appearing and participating in the said proceedings has assailed the said order before the Board of Revenue and accordingly, submits that the matter should stand restored to the Naib Tehsildar, who shall hear and pass fresh orders, after hearing the petitioners and respondent no.3.

8. Considering the rival submissions it is noticed that on the death of his mother- Smt. Mustakeeman, the petitioners moved application under Section 34 of U.P. Revenue Code, which was allowed on the basis of succession and the possession. There is no dispute that neither the respondent no.3 made a party in the said proceedings nor she was given an opportunity of hearing and on coming to know the order dated 2.9.2022, she has moved an application for recall. It is only on the presentation of the application an interim order has been passed on 30.10.2022.

9. I find that by the order dated 3.10.2022, it has been recorded that the previous order was passed exparte and notices have also been issued to the petitioners and 21.10.2022 was the date fixed for hearing. The only ground raised by the petitioners is that while passing the order dated 3.10.2022 he was not given any opportunity of hearing. I find that for passing ad- interim injunction in case the facts so require an exparte order can also be passed and on appearance of the parties in the said proceedings and if any cogent objection is filed, the said order can be suitably modified.

10. I do not find any illegality in grant of an ad-interim injunction in any situation with the facts of the matter so required, such order to be passed. In the present case, I find that an exparte order was passed on 2.9.2022, where the respondent no.3 was neither a party nor she was heard and it has clearly been recorded that in order to restrain further creation of third party rights, it was necessary that an ad interim order be passed restraining the petitioners from alienating the said property.

11. Accordingly, considering the essential ingredients for passing such an order, which is prima facie a case balance of convenience and irreparable loss, all of which have been duly considered by the Authority, the order dated 3.10.2022 was passed.

12. Accordingly, I do not find any infirmity in the same on the other hand I would hasten to add that instead of assailing the said order before the revisional court, the petitioners should have appeared in the proceedings and filed their objections and could have also prayed for vacation of the order dated 3.10.2022, in which circumstance the Authorities would have been under mandate to consider such objections and decide on the aspect as to whether the order dated 3.10.2022 was liable to be continued or liable to be vacated.

13. In any view of the case, I find that now the matter stands restored to Naib Tehsildar, Tikaitnagar, Tehsil Sirauligauspur, District Barabanki and I have further recorded that I do not find any infirmity in the order dated 3.10.2022, the petitioners would be at liberty to appear in the proceedings before the Naib Tehsildar, whereat his application under Section 34 of the U.P Revenue Code, is pending consideration.

14. Accordingly, in the light of the above, it is expected that the Naib Tehsildar, Tikait Nagar, Tehsil- Sirauligauspur, District Barabanki shall proceed to decide the said case with expedition, within next three months, in accordance with law, after due opportunity of hearing tot he parties concerned.

15. In view of the aforesaid, the petition stands dismissed. . (Alok Mathur, J.) Order Date :- 6.8.2025 Muk MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri Virendra Kumar Shukla, learned counsel for the petitioners as well as learned Standing Counsel for respondents no. 1 and 2.

2. In the light of proposed order, notice to respondent no. 3, is dispensed with.

3. By means of present writ petition, the petitioners have prayed the following reliefs:- "a. issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 05.06.2025, passed by opposite party no.1 in Revision No. 1855 of 2025, Fakir Hasan and others Vs. Noorbano, under Section 210 of U.p. Revenue Code, 2006 and impugned judgement and order dated 03.10.2022 passed by Naib Tehsildar, Tikaitnagar, Tehsil- Sirauligauspur, District Barabanki in Case No. RST/2910/2021, Fakir Hasan and others Vs. Smt. Mustakeeman, under Section 34 of U.P. Revenue Code, 2006 and confirmed the order dated 02.09.2022 passed by opposite party no.2, as contained in Annexures No.1, 2 and 3 to this Writ Petition. b. issue a writ, order or direction i n the nature of Mandamus commanding the opposite parties not to disturb the peaceful possession of the petitioners over the Gata No. 71, 109 Mi., 110 Mi., 111 and 194, situated at Village Bhaisuriya, Pargana Dariyabad, Tehsil Sirauligauspur, District Barabanki, in the interest of justice."

4. The dispute in the present writ petition pertains to the mutation of property of Gata No. 71, 109 Mi., 110 Mi., 111 and 194, situated at Village Bhaisuriya, Pargana Dariyabad, Tehsil Sirauligauspur, District Barabanki. It has been submitted by learned counsel for the petitioners that the aforesaid land was recorded in the name of Mustakeeman w/o Muharram Ali, who is the mother of the petitioners. On the basis of succession, the petitioners moved an application under Section 34 of U.P. Revenue Code, 2006 on 22.12.2021, for mutating the name of the petitioners and deleting the name of the mother. On the basis of succession and possession which was demonstrated by the petitioners before the Naib Tehsildar, Tikaitnagar, Tehsil- Sirauligauspur, District Barabanki, his application was allowed, by means of order dated 2.9.2022. Against the order dated 2.9.2022, the respondent no.3- Noor Bano W/o Mohammad Israil, who is the sister of the petitioners, moved an application for recall of the order dated 2.9.2022 stating that it was an exparte order having been passed without opportunity of hearing to the applicant therein. The Naib Tehsildar by means of the order dated 3.10.2022, stayed the operation of the order dated 2.9.2022 and also restrained the petitioners from alienating the said land and issued notices to the petitioners and fixed the case for hearing on 21.10.2022.

5. The petitioners being aggrieved by the order dated 3.10.2022, had preferred a revision before the Board of Revenue, which has been rejected by means of order dated 5.6.2025, and accordingly, in the present petition the petitioners have challenged the validity of order dated 5.6.2025, passed by the Board of Revenue as well as the order dated 3.10.2022, passed by the Naib Tehsildar, Tikaitnagar, Tehsil Sirauligauspur, District Barabanki.

6. Learned counsel for the petitioners submits that the order dated 3.10.2022 was passed without affording any opportunity of hearing to the petitioners, therefore, the same is illegal, arbitrary and is liable to be set aside. He submits that it is for the same reason that even revisional Authority has not considered the grounds taken by the petitioners, and accordingly has assailed the validity of both the orders.

7. Learned Standing counsel has submitted that the order dated 2.9.2022 was passed on the application of the petitioners where neither the respondent no.3 was made a party nor she participated in the said proceedings and therefore, there is no infirmity in the order dated 3.10.2022. He further submits that in view of the order dated 3.10.2022, notices sent to the petitioners who, instead of appearing and participating in the said proceedings has assailed the said order before the Board of Revenue and accordingly, submits that the matter should stand restored to the Naib Tehsildar, who shall hear and pass fresh orders, after hearing the petitioners and respondent no.3.

8. Considering the rival submissions it is noticed that on the death of his mother- Smt. Mustakeeman, the petitioners moved application under Section 34 of U.P. Revenue Code, which was allowed on the basis of succession and the possession. There is no dispute that neither the respondent no.3 made a party in the said proceedings nor she was given an opportunity of hearing and on coming to know the order dated 2.9.2022, she has moved an application for recall. It is only on the presentation of the application an interim order has been passed on 30.10.2022.

9. I find that by the order dated 3.10.2022, it has been recorded that the previous order was passed exparte and notices have also been issued to the petitioners and 21.10.2022 was the date fixed for hearing. The only ground raised by the petitioners is that while passing the order dated 3.10.2022 he was not given any opportunity of hearing. I find that for passing ad- interim injunction in case the facts so require an exparte order can also be passed and on appearance of the parties in the said proceedings and if any cogent objection is filed, the said order can be suitably modified.

10. I do not find any illegality in grant of an ad-interim injunction in any situation with the facts of the matter so required, such order to be passed. In the present case, I find that an exparte order was passed on 2.9.2022, where the respondent no.3 was neither a party nor she was heard and it has clearly been recorded that in order to restrain further creation of third party rights, it was necessary that an ad interim order be passed restraining the petitioners from alienating the said property.

11. Accordingly, considering the essential ingredients for passing such an order, which is prima facie a case balance of convenience and irreparable loss, all of which have been duly considered by the Authority, the order dated 3.10.2022 was passed.

12. Accordingly, I do not find any infirmity in the same on the other hand I would hasten to add that instead of assailing the said order before the revisional court, the petitioners should have appeared in the proceedings and filed their objections and could have also prayed for vacation of the order dated 3.10.2022, in which circumstance the Authorities would have been under mandate to consider such objections and decide on the aspect as to whether the order dated 3.10.2022 was liable to be continued or liable to be vacated.

13. In any view of the case, I find that now the matter stands restored to Naib Tehsildar, Tikaitnagar, Tehsil Sirauligauspur, District Barabanki and I have further recorded that I do not find any infirmity in the order dated 3.10.2022, the petitioners would be at liberty to appear in the proceedings before the Naib Tehsildar, whereat his application under Section 34 of the U.P Revenue Code, is pending consideration.

14. Accordingly, in the light of the above, it is expected that the Naib Tehsildar, Tikait Nagar, Tehsil- Sirauligauspur, District Barabanki shall proceed to decide the said case with expedition, within next three months, in accordance with law, after due opportunity of hearing tot he parties concerned.

15. In view of the aforesaid, the petition stands dismissed. . (Alok Mathur, J.) Order Date :- 6.8.2025 Muk MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench