Jammu & Kashmir High Court - Srinagar Bench
Abdul Aziz Hafiz And Others vs State Of Jk And Others on 11 August, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP NO. 507 of 2014 CMP NO. 778 of 2014 Abdul Aziz Hafiz and others Petitioners State of JK and others Respondents !Mr. A. Andrabi, Advocate ^Mr. M. A. Qayoom, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 11/08/2015 : J U D G M E N T :
(Oral) One Mst. Rahti, Estate Holder, was married to Wali Mohammad Hafiz who contracted 2nd Marriage with Mst. Fazi. Mst. Rahti begot two daughters and one son namely Mst. Fazi, Mst. Azizi and Ali Mohammad to Wali Mohammad Hafiz, her husband.
The 2nd wife Mst. Fazi begot Abdul Aziz, Abdul Rashid, Mohammad Shafi and Mohammad Latief to Wali Mohammad Hafiz.
Mst. Fazi is respondent no. 4 in this writ petition and children of Wali Mohammad Hafiz by Mst. Fazi are petitioners in this writ petition. Mst. Azizi and Ali Mohammad died issueless. The Property of Mst. Rahti was mutated in the name of Ali Mohammad Hafiz the real brother of respondent no. 4 and in terms of order on mutation No. 134, the Estate of Ali Mohammad S/o Rahti and brother of respondent no. 4 was mutated in favour of respondent no. 4 and she was given one share excepting Khewat No. 114 and rest of the Estate was mutated in the name of present petitioners. This Mutation order was challenged in Appeal which was dismissed by the Appellate Authority which constrained the respondent no. 4 to challenge the same in Revision petition before the Settlement Commissioner. Settlement Commissioner made three references to Financial Commissioner Revenue, who vide order impugned in this petition accepted the references and set aside the impugned orders and remanded the matter to Tehsildar concerned for attesting of fresh Mutation strictly in accordance with Muslim Law. It is directed that Estate of Rahti as well as Ali and Azizi be mutated in favour of respondent no. 4. It is this order and also the order passed on same date by Financial Commissioner, Revenue on the Revision petition filed by the present petitioners against the orders of Additional Divisional Commissioner dated 21st April, 2011 read with order of Collector, Budgam dated 16th June, 2005 which was also dismissed. These orders are called in question in this petition.
Mr. Arshid Andrabi learned counsel for the petitioners submitted that the orders on Mutation passed in 50s could not be challenged at belated stage in Revision Petition. Learned counsel submitted that the orders of the Financial Commissioner, Revenue is illegal, as he has entertained time barred Revision petition. Learned counsel also submitted that the order on Mutation was consent order and respondent no. 4 had consented to the passing of the said order(s), so no Appeal would lie against the said order in view of the mandate contained in Section 96 of Code of Civil Procedure. Learned counsel also submitted that respondent no. 4 has acted upon the order of mutation passed in the year 2006, inasmuch as, she executed the sale deed in respect of the some land share of which fell to her share in terms of aforesaid mutation order. Learned counsel on the pointed question of the Court, however, admitted that in law petitioners are not entitled to inherit the Estate left behind by Mst. Rahti.
Learned counsel further submitted that in last few decades the part of estate has changed hands. Learned counsel also submitted that settlement proceedings have also taken place which has completely changed the factual and legal scenario in this case and this settled position could not have been unsettled by the Financial Commissioner, Revenue. Learned counsel also submitted that Financial Commissioner Revenue does not have any knowledge of Revenue law, this is how illegal order has came into existence.
Learned counsel in support of his contention referred to and relied upon the judgment reported in 2006(II) SLJ 449. Learned counsel further submitted that if the Revenue Authorities take suo- moto cognizance of the matter then issue of limitation would not arise, but when any party invoke Revisional jurisdiction of the Court, then the question of limitation does arise.
Mr. M. A. Qayoom learned counsel for the private respondent submitted that the so called consent given by the respondent no. 4 in mutation proceedings would not stop her in law to stake claim in respect of the landed property which she otherwise inherited in accordance with law. Learned counsel, further submitted that the issue of limitation would not arise in such type of cases. Learned counsel also submitted that this is settled position in law that the orders passed on mutation does not confer title on the party. Learned counsel in support of his contention referred to and relied upon the Division Bench judgement of this court reported in 1971 JKLR(4), 2009(1) SLJ 2 and 2005 (2) SLJ 716 and submitted that this petition deserves to be dismissed.
It is not in dispute that the Estate of Rahti on her death devolved upon Mst. Fazi-respondent no. 4, Mst. Azizi and Ali Mohammad her children. It is also not in dispute that Mst. Azizi and Ali Mohammad died issueless. The admitted fact position which surface in this case is that respondent no. 4- Mst. Fazi is sole surviving heir to the Estate of Rahti her mother, Azizi her sister and Ali Mohammad her brother.
Admittedly petitioners who are born from 2nd wife of Wali Mohammad Hafiz in law are not heirs of Mst. Rahti, first wife of Wali Mohammad Hafiz.
In Muslim law, when the Estate holder dies, devolution of property becomes complete at that very moment. It is neither deferred nor it can wait for passing of orders by any authority. The Muslim law makes it clear that the moment the Estate holder dies, the property devolves on his/her heirs instantaneously. In this case the property of initial Estate holder Mst. Rahti on her death, devolved upon Mst. Fazi-respondent no. 4, Mst. Azizi and Ali Mohammad and on the death of Mst. Azizi and Ali Mohammad the property devolved upon respondent no. 4. The orders on mutation passed thereafter would not change the factum of devolution of property of original Estate holder-Mst. Rahti to respondent no. 4.
The immovable property can be transferred in terms of Section 54 of Transfer of property Act. It can be transferred by gift which can be both in writing as well as oral. The transfer of immovable property would take effect in accordance with provision of Transfer of property Act of 1977 and provisions of Registration Act of 1977. The mutation proceedings initiated by the Revenue officer can neither confer title in respect of the immovable property on any person nor can a person be deprived of his title which he or she has acquired in any immovable property in such proceedings. The mutation proceedings are initiated to update the revenue record and maintain the covert pedigree tables after the death of the Estate holder. It is settled position in law, as already stated, that mutation proceedings or any order on mutation does not strip off a person of his vested legal rights qua immovable property nor it confers any such right on any person. Any order on mutation passed by the Revenue authorities which affects or deprives a person of his vested legal rights qua his immovable property would be non est and void ab initio in the eyes of law. It will be a mere piece of paper which cannot affect vested legal rights on a person qua immovable property. Such an order on a mutation, even, if it is not directly challenged by filing of Appeal or Revision can be contested in collateral proceedings by the aggrieved person(s).
However, the moment such an order is brought to the notice of the superior revenue authority that such an order is in existence, the revenue authority is under statutory obligation to correct the record because it cannot afford to keep the wrong record available in perpetuity. Superior authority more particularly which has supervisory powers is duty bound to keep and maintain the correct record and it can be done on a motion of the party or suo-moto by concerned supervisory authority.
The law of limitation does not take away powers of supervisory authority to correct the fundamental and basic defects of the record. The issue of limitation is not a jurisdictional issue but is a legal issue. The law of limitation does not extinguish the right of the party qua the immovable property. The orders on mutation passed by the revenue authority in the facts of this case are only piece of paper which would not affect the legal rights of the private respondent. Supervisory authority is duty bound in law to correct the mistake committed by the subordinate authority. Law of limitation cannot become basis for depriving a person of his vested legal right qua immovable property. In common law country like ours, the law of limitation is not a substantive law, thus cannot destroy the vested legal rights of party qua immovable property..
The malafides levelled against the Financial Commissioner, Revenue cannot be entertained for twin reasons; one that Financial Commissioner, Revenue is not a party respondent in person and it would be against the principle of natural justice to proceed and consider the matter on such allegation; 2ndly learned counsel who has levelled allegation appeared before the Financial Commissioner to argue the case on behalf of his client. He has not raised any objections or allegation before the Financial Commissioner at the time of hearing of the case.
The sale of property by any party would not change the basic features of this case, which are delineated in this order.
The consent in mutation proceedings given by a person, as discussed in this order, will not confer title on a person in respect of immovable property.
In this case, it is alleged that respondent no. 4 has affixed thumb impression on mutation order, which situation will not deprive her to file statutory appeal to get the record corrected.
For the above stated reasons this petition is held to be meritless and is accordingly dismissed alongwith connected CMP(s).
Interim direction, if any, shall stand vacated.
(Muzaffar Hussain Attar) Judge Srinagar 11.08.2015 Imtiyaz