OSAMA JAFRI AND 4 OTHERSversusState of U.P. AND 6 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                         WRIT - C No. - 18255 of 2024

Osama Jafri And 4 Others
                                                               .....Petitioner(s)
                                      Versus

State Of U.P. And 6 Others
                                                            .....Respondent(s)

Counsel for Petitioner(s)            : Mohd. Imran, Syed Safdar Ali Kazmi
Counsel for Respondent(s)            : C.S.C., Rakesh Kumar Srivastava

Court No. - 4
                  HON'BLE KSHITIJ SHAILENDRA, J.

1. Heard Mr. Syed Safdar Ali Kazmi, learned counsel for the petitioners,
learned Standing Counsel for the State-respondents no. 1, 2 and 3 and Shri
Rakesh Kumar Srivastava, learned counsel for the respondent no. 4.

2. Affidavits have been exchanged between the parties and, therefore, the
petition is being finally decided.

3. A civil litigation covered by Civil Suit No. 101 of 1984 in relation to the
property in dispute was decided in favour of the petitioners by the trial court,
whereby suit was decreed. First appeal filed by the contesting respondents
thereagainst was dismissed and second appeal filed against the first appellate
decree was also dismissed by this Court in the year 2002.

4. Based upon the said decree drawn in favour of the petitioners, proceedings
for correction of entries were initiated. Some orders were passed by the
authorities against the petitioners; Writ-C No. 32812 of 2021 was filed by
them, wherein scope of provisions of Section 38 of U.P. Revenue Code,
2006 ('the Code') was discussed and, ultimately, the writ petition was
dismissed with liberty to the petitioners to invoke specific provisions
through correction application.

5. In terms of the liberty granted by this Court, application under Section
33/39 of the Code was filed by the petitioners, which was allowed on
08.01.2024. The said order was recalled by the Tehsildar by order dated
30.03.2024 and proceedings of mutation case were restored. Further, an
injunction was granted by the same order restraining alienation of the
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property till disposal of the mutation case.

6. Learned counsel for the petitioners submits that once the civil court's
decree has been upheld upto this Court, making of mutation entries is a
ministerial/administrative exercise and, therefore, the order dated 30.03.2024
is liable to be set aside. It is further submitted that, even otherwise, once the
order dated 08.01.2024 was passed after recording finding on service of
notice upon the contesting respondents, the restoration/recall application
filed under Section 209 (h) of the Code was not maintainable and has been
wrongly allowed.

7. Further submissions have been made that the restoration application filed
at the instance of the respondents showing that their father Ahmad Ali had
died, was contrary to the factual position, inasmuch as Ahmad Alis is still
alive and when this aspect was agitated in the objections filed against the
restoration application, the respondents, in their rejoinder affidavit, admitted
the same and, in any case, once the restoration application was not
maintainable during the lifetime of Ahmad Ali, the order is liable to be set
aside on this ground also.

8. Learned Standing Counsel submits that in view of availability of
alternative remedy against the order impugned under the Code itself, this
petition is not maintainable and is liable to be dismissed on this ground
alone.

9. Learned counsel for the private respondents submits that no notice was
served upon the respondents and, therefore, the Tehsildar has rightly allowed
the restoration application. As regards status of Ahmad Ali being alive or
dead, reference has been made to Annexure-1 to the counter affidavit, i.e. a
copy of amendment application wherein the error has been stated to be a
typographical error. It is further submitted that mere passing of the decree in
favour of the petitioners would not ipso facto mean that mutation matter
should also be decided in favour of the petitioners and, therefore, once the
same has been revived in terms of the impugned order, the petitioners have
every opportunity to make submissions before the Tehsildar and, hence, no
interference is warranted in the order impugned.

10. I have considered the submissions made and perused the material
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available on record.

11. There is no dispute between the parties that the civil litigation, which has
attained finality upto this Court in terms of dismissal of second appeal,
relates to the same property.

12. As far as dismissal of Writ-C No. 32812 of 2021 is concerned, a perusal
of the order dated 17.08.2023 indicates that even in that order, findings were
recorded in favour of the petitioners as far as declaration of title in their
favour is concerned. The writ petition was, in fact, dismissed only on the
ground of invocation of wrong provision, i.e. Section 38 and liberty was
granted to invoke correct provisions of law which, later on, were invoked in
terms of application under Section 33/39 of the Code.

13. As far as service of notice upon the respondents is concerned, a finding
has been recorded in the order dated 08.01.2024 that notices were issued to
the respondents which were served upon them and that the service report is
on record. Even if this Court, for the time being, accepts the submissions
made on behalf of the private respondents that due service of notice does not
stand reflected from the record, the Court called upon the counsel for the
respondents to address the Court on merits of their claim, particularly in
light of the fact that they have lost the litigation upto this Court. The only
submission made by counsel for the respondents is that since mutation
proceedings have to be decided on merits in terms of revival thereof, this
aspect may be adjudicated by mutation court itself and not by this Court.

14. In the opinion of the Court, as is also well settled that mutation entries
are subject to determination of rights by the competent court deciding title of
the parties. Once title has already been decided in favour of the petitioners,
the mutation shall follow the same. Nothing has been argued as to why
determination made by the civil court as upheld by this Court should not be
implemented in the revenue records.

15. There is also a dispute between the parties that some part of the property
in dispute has been sold by the respondents. The said aspect not being
subject matter of adjudication in the present litigation, no observation is
being made in that regard.
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16. In light of the above discussion, if the order impugned is perused, the
Court finds that after noticing the finality attached to the civil litigation upto
this Court, no finding has been recorded by the Tehsildar as to why
restoration application should be allowed and the only words indicated are
that the officer reached to the conclusion that the applicants of recall
application were entitled to get benefit of Section 5 of the Limitation Act
and, therefore, the order dated 08.01.2024 was recalled.

17. The most surprising part of the order impugned is that while restoring the
proceedings of mutation, the Tehsildar has passed an order of injunction
restraining alienation of property till disposal of mutation proceedings as if
he was exercising powers of civil court. The said part of the order also being
without jurisdiction cannot be sustained.

18. As far as the submissions made by learned Standing Counsel that in view
of availability of alternative remedy, this writ petition should be dismissed
on this ground alone, the Court finds that the writ petition was entertained by
this Court in the year 2024 and a detailed interim order was also passed after
hearing the learned Standing Counsel also. Even if the plea of alleged
alternative remedy was available to the respondents, the same appears not to
have been raised at that time and, therefore, in view of the Division Bench
decision of this Court in M/s Shahnaz Ayurvedics, Noida and another Vs.
Commissioner of Central Excise and others: 2004 U.P.T.C. 737 (DB),
wherein various decisions of Hon'ble Supreme Court were considered, it has
to be observed that the plea of alternative remedy having not been raised at
the first instance cannot be allowed to be raised at this stage, particularly
when interim order has already been passed in 2024. Paragraph-22 of the
judgment of M/s Shahnaz Ayurvedics (supra) reads as under:-

     "Be that as it may, the Hon'ble Apex Court in Union of India Vs.
     Ahmedabad Electricity Co. Ltd. & Ors., JT (2003) 8 SC 153, while
     dealing with the same provisions, has categorically held that the writ
     jurisdiction is not barred in all the circumstances.Thus, we are of the view
     that the writ petition can be entertained against the impugned judgment
     and order. The petition was entertained at the initial stage after
     hearing the learned Counsel for the Revenue, and interim relief had
     been granted after having deliberations at length and the Counsel for
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                                           Revenue did not even raise the plea in this regard at that time. It is
                                           being raised at a belated stage, the same is not worth acceptance and
                                           accordingly rejected."

                                    19. In view of the above discussion and considering the stand taken in the
                                    counter affidavit where all the statements of fact and proceedings raised in
                                    the writ petition have been admitted by the respondents, this Court is of the
                                    view that revival of the proceedings in pursuance of the order impugned
                                    shall be an empty formality and, even otherwise, the matter being quite old,
                                    the Court is not inclined to give rise to further litigation. The legal maxim
                                    interest reipublicae ut sit finis litium applies in full force in the facts and
                                    circumstances of the present case, which means that it is in the interest of the
                                    State that there must be an end to litigation.

                                    20. Recently the Hon’ble Supreme Court, in Suvej Singh v. Ram Naresh
                                    and others : (2025) 12 SCR 584, after referring to decisions in the case of
                                    M.C. Mehta v. Union of India and others : (1996) 6 SCC 237; State of
                                    Uttar Pradesh v. Sudhir Kumar Singh and others : (2021) 19 SCC 706
                                    and Krishnadatt Awasthy v. State of Madhya Pradesh : 2024 SCC
                                    Online SC 493, has held that higher Courts should avoid unnecessary
                                    remand which may generate fresh round of litigation. The view has been
                                    reiterated in Mahendra Prasad Agarwal v. Arvind Kumar Singh and
                                    others : 2026 LiveLaw (SC) 195.

                                    21. In view of the above discussion, the order impugned dated 30.03.2024
                                    cannot be sustained and the same is set aside.

                                    22. The writ petition is allowed.

                                    23. Consequences would follow.



                                                                                             (Kshitij Shailendra,J.)
                                    September 23, 2026
                                    AKShukla/-




Digitally signed by :-
ANIL KUMAR SHUKLA
High Court of Judicature at Allahabad