Jammu & Kashmir High Court - Srinagar Bench
Ghulam Nabi Sheikh And Ors vs State Of Jk And Ors on 17 March, 2022
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
S. No. 11
Regular Cause List
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 11.03.2022
Pronounced on: 17. 03.2022
OWP No. 560/2013
Ghulam Nabi Sheikh and Ors. ...Petitioner(s)
Through: Mr M. S. Reshi, Advocate.
Vs.
State of JK and Ors. ...Respondent(s)
Through: Ms Insha Haroon, GA vice
Mr M. A. Chashoo, AAG for R 1 and 2.
Mr Nissar Ahmad Bhat, Advocate for R 3
CORAM:
HON'BLE MR JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. The subject matter of the dispute between the petitioners and the private respondent is the estate of Aziz Sheikh, who died in the year 1985. The said Aziz Sheikh was survived by his wife, son and daughter who are the petitioner Nos. 1,2 and respondent No. 3 respectively. After his demise, a mutation bearing No. 305 was attested on 28/08/1989 with regard to the estate of deceased in favour of petitioner number 1 and 2 in the ratio of 2:1. Thereafter, the petitioner No. 2 executed two registered gift deeds in favour of respondent No. 3 and 4 respectively. The gift deed for land measuring 2 Kanal-10 marlas comprising survey No. 235 was executed in favour of petitioner No. 3, pursuant to which mutation bearing No. 50 was attested on 22/06/2005 and another gift deed for land measuring 2 Kanal-9 ½ half marlas comprising survey No. 235, 239 and 251, was 1 executed in favour of petitioner No. 4, pursuant to which mutation No. 53 was attested in favour of petitioner No. 4. The respondent No. 3 and 4 are the sons of the petitioner No.1 and grandsons of the petitioner No.2.
2. The mutations bearing numbers 305, 50 and 53 were assailed by the daughter of the petitioner No. 2 and Aziz Sheikh i.e. respondent No:3 herein, by virtue of three different revision petitions filed before the Learned Financial Commissioner, J&K on 05/09/2007. The respondent No. 3 had assailed the mutation No. 305, 53 and 50 attested in favour of petitioners on the ground that she had been condemned unheard and her presence had been wrongly shown in the impugned mutation bearing no. 305 because she was not identified by Lamberdar, Chowkidar or any other respectable person of the village as required under Standing Order 23-A. It was also one of the ground that the mutating officer had no jurisdiction to deviate from Muslim personal Law as petitioner No. 2 had a right to inherit 1/8 th share only out of the total estate of the deceased and further that the respondent No. 3 being natural daughter of the deceased was also entitled to inherit the property left by her father. It was also stated that the petitioner No. 2 further had no right and locus to execute any kind of gift deed with regard to the property in question in favour of the petitioner No. 3 and 4. It was also stated that the respondent No. 3 had no knowledge of the impugned mutation till 18/06/2007 and on this date the respondent No. 3 got the knowledge of the impugned mutation for the first time and immediately filed the revision petitions. 2
3. The petitioners submitted the written objections and objected to the maintainability of the revision petitions on the ground that the mutation of inheritance was attested in the year 1989 in presence of both the legal heirs of the deceased estate holder, whereby the respondent No. 3 in the open court of the Tehsildar concerned, after being identified by the local respectable, implored the Tehsildar concerned to mutate the whole of the estate of the deceased in favour of her brother i.e. petitioner No. 1. It was also stated that every form of order emerging out of Land Revenue Act is to be challenged as provided under section 12 of Land Revenue Act within the period of 60 days from the date of the order. In the instant case the impugned mutation bearing No. 305 was attested in the year 1989 and that too in the presence of the respondent No. 3 and as such the said revision petition was hopelessly time-barred. So far as other mutations bearing numbers 50 and 53 are concerned it was stated that the same were attested on the basis of registered gift deeds and the gift deeds are required to be challenged before the civil court.
4. The Ld. Financial Commissioner vide order dated 28/01/2015, set aside all the three mutations. The petitioners have impugned the order dated 28/01/2015 (hereinafter referred to as order impugned) passed by the Ld. Financial Commissioner on the grounds that the challenge thrown to the mutations was hopelessly time-barred as the mutation of inheritance bearing No. 305 was attested in the year 1989 but was assailed in the year 2007 and also that the mutations were attested in her presence and with her consent. It is also stated that the respondent No. 3 was identified by the respectable of the village. 3
5. The respondent No. 3 who is the main contesting party has not filed any rejoinder as the Ld. counsel appearing for the respondent No. 3 on 23/08/2021 stated that he did not want to file counter and his statement was taken on record and the matter was posted for final hearing.
6. Mr. M.S Reshi, Ld. counsel appearing for the petitioners vehemently argued that the revision petitions filed by the respondent No. 3 were hopelessly time-barred. He laid much stress that the period of limitation is applicable to the revision petitions filed under Land Revenue Act and the mutation of inheritance bearing No. 305 was attested in the year 1989 and after 18 years, the respondent No. 3 filed the revision petition challenging the same which was hopelessly time-barred. He further argued that the respondent No. 3 was all along present when the mutation was attested and the mutation bearing No. 305 bears the thumb impression of the respondent No. 3.
7. Per-Contra, Mr. Nisar Ahmed submitted that the mutation bearing No. 305 was attested in utter disregard of the mandate of standing order 23-A and further that the mutation has been attested contrary to Muslim personal Law. He further submitted that mutation bearing No. 305 is in fact a nullity.
8. Heard and perused the record. The original mutation bearing No. 305 was also perused.
9. The validity of the other two mutations is dependent upon the outcome of challenge to the mutation bearing No.305 and because of this reason only, all the three revision petitions were decided by common order by learned Financial Commissioner. The perusal of the 4 record reveals that a specific plea was taken by the petitioners before the Learned Financial Commissioner that the revision petitions were filed after inordinate delay as the mutation of inheritance bearing No. 305 was attested in the year 1989 whereas the revision petition challenging the same was filed in the year 2007. The perusal of the order impugned reveals that the Ld. financial Commissioner has not at all considered the plea of delay in filing the revision petition, as raised by the petitioners. No doubt there is no specific period of limitation provided for filing revision petition under Land Revenue Act but it has been held by the Hon'ble Division Bench in case titled "Wali Mohd. Magrey & Ors Vs. Ali Mohammed Gujree & Ors" reported in 2022(1) JKJ(HC) 307, that the revision petition filed at the instance of aggrieved party would attract the provisions of limitation. The relevant portion of the judgment is reproduced as under:
13. Coming to the relevant provisions of the Land Revenue Act, with which we are concerned herein, it is seen that Section 12 thereof provides for limitation for appeals, revisions and reviews and Section 15 provides for power to revise order. The two Sections are quoted hereunder:
"12. Limitation for appeals, revisions and reviews- (1) Save as otherwise provided in this Act, the period of limitation for an appeal under the last foregoing section shall be as follows:-
(a) when the appeal lies to the Collector or an Assistant Collector of the first class ... 60 days;
(b) when the appeal lies to the Financial Commissioner or Divisional Commissioner ...
90 days:
Provided that, in the Districts of Ladakh and Gilgit twice the ordinary period of limitation for appeals under this section shall be allowed.5
(2) Such provisions of the Limitation Act as apply to appeals, applications for revision and review in civil suits shall also apply to appeals, applications for revision and review under this Act. "
15. Power to revise order-
(1) The Financial Commissioner may at any time call for the records of any case pending before or disposed of by any Revenue Officer under his control.
(2) The Divisional Commissioner may call for the record of any case pending before or disposed of by any Revenue officer subordinate to him. (3) If in any case in which the Divisional Commissioner has called for a record he is of opinion that the proceedings taken or order made should be modified or revised he shall report that case with his opinion thereon for the orders of the Financial Commissioner. (4) The Financial Commissioner may, in any case called for by him under sub-section (1) or reported to him under sub-section (3) pass such order as he thinks fit:
Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate officer affecting any question of right between private persons without giving those persons an opportunity of being heard."
It be seen that whereas sub-section (1) of Section 15, providing for power to revise orders, uses the phrase 'at any time', meaning at any time, without reference to limitation, sub-section (2) of Section 12 provides that such provisions of Limitation Act as apply to applications for revision etc. in civil suits shall also apply to revisions etc. under the said Act. Obviously, Sub- section (1) refers to the suo moto exercise of power of revision by the Financial Commissioner and sub-section (2) of Section 12 refers to the revisions initiated under Section 15 of the Act at the instance of an aggrieved party. The provision of the law in sub-section (2) of Section 12 of the Land Revenue Act, thus, expressly, clearly and unambiguously provides limitation period for revision applications under the Act, as being the same as provided for revisions under the Limitation Act in civil suits.
It may also be equally relevant to mention here that, of course, there is no limitation period as such 6 prescribed under the Limitation Act for revision applications in civil suits. However, it has been consistently held by this Court that normally a revision petition shall be filed within the same period as is prescribed for filing an appeal against a decree or order, which, admittedly, is 90 days (See Rahman Labroo v. Rajab Labroo, 1982 SLJ 489. We reiterate the law so laid down.
10. Admittedly in the instant case, the revision petition was filed after 18 years of the attestation of the mutation. This Court is of the considered opinion that once the plea of limitation was raised by the petitioners, it was obligatory on the part of the Ld. financial Commissioner to decide the same notwithstanding the fact that the respondent No. 3 had claimed to have acquired the knowledge of the mutations in the month of June 2007. Incidentally, in the judgement mentioned above, similar plea was raised by the aggrieved party that as soon as the knowledge of mutation was acquired, the revision was filed. Interestingly in the instant case though the respondent No. 3 has specifically stated that she was not present at the time of attestation of mutation bearing No. 305 but the perusal of mutation reveals that it carries the thumb impression of Mst. Khati and the respondent No. 3 has nowhere stated in the revision petition that she did not put her thumb impression on the said mutation. This Court is of the considered opinion that once the plea of limitation was raised by the petitioners before the Ld. financial Commissioner, it was obligatory on the part of Ld. financial Commissioner to consider the said plea and return finding on the same. No delay can be condoned by implication but there must be specific finding with regard to the sufficient cause for seeking condonation of delay. The Hon'ble 7 Division Bench in case titled "Ghulam Qadir Bhat versus Financial commissioner (Revenue) & Ors" reported in 2021(5) JKJ(HC) 1, has held that the revisional powers cannot be exercised arbitrarily after an inordinate delay of the passing of the order sought to be revised and also it has been further observed as under:
"The case at hand is a classic example of inordinate and unreasonable delay in exercise of revisional power. The said power has been exercised without recording any satisfaction as to the delay in exercising it more particularly when the two earlier generations of the revisionist have not come forward to object to the mutation or to challenge it by filing a revision. Thus, it is a clear case of unreasonable delay in exercise of revisional power."
11. Viewed, thus the order impugned dated 28/01/2015 passed by Ld. Financial Commissioner, is set aside and the Learned Financial Commissioner, J&K shall decide the issue of limitation after hearing both the parties and any observation made by this Court is solely for the purpose of considering the present controversy and shall have no bearing upon the merits of the case. The original record be sent to Tehsildar concerned.
12. Disposed of.
(RAJNESH OSWAL) JUDGE SRINAGAR 17.03.2022 Ishaq Whether the order is speaking: Yes/No Whether the order is reportable Yes/No 8