Jammu & Kashmir High Court - Srinagar Bench
Bashir Ahmad Tak And Ors vs Financial Commissioner Revenue And Ors on 1 August, 2022
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
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Serial No. 06
Regular cause list
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
SRINAGAR
OWP No. 612/1999
CM No. 3134/2021
Bashir Ahmad Tak and Ors.
..... Petitioner(s)
Through: -
Mr. P. S. Ahmad, Advocate
V/s
Financial Commissioner Revenue and Ors.
..... Respondent(s)
Through: -
Mr. M. Ayoub Bhat, Advocate CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge (ORDER) 01.08.2022 Oral Petitioners are aggrieved of the order dated 26.05.1993, passed by the Collector- Deputy Commissioner, Pulwama in an appeal filed by the respondent No. 3, against the order dated 28.05.1986, passed by the Tehsildar, Agrarian, Tral, in terms whereof the Deputy Commissioner, Pulwama, while allowing the appeal, set aside the order of Tehsildar, Agrarian, Tral and directed him to attest the mutation order for correction of entries as was originally contemplated by such entry of mutation No. 566 to restore the recorded position as it stood before the impugned interpolation regarding Survey numbers as mentioned in mutation No. 566.
Petitioners claim to be the legal heirs of Ghulam Mohi-ud-Din Tak, who was respondent before the Appellate Court, but had died during the pendency of the appeal, therefore, on knowledge about the impugned order 2 of the Deputy Commissioner, Pulwama, dated 26.05.1993, challenged the same in revision petition bearing No. 67/1993, before the Financial Commissioner, J&K, Srinagar, and the Financial Commissioner, after hearing learned counsel for the parties, and considering the material on record, dismissed the revision petition vide order dated 21.01.1998. It is stated that the petitioners thereafter filed review petition against the order of the Financial Commissioner, J&K, Srinagar, dated 21.01.1998, which came to be dismissed on 07.09.1999. Petitioners have challenged these orders in the present writ petition on the grounds detailed out in the petition with particular reference that the orders impugned are against the records, therefore, are not only perverse but illegal also.
Mr. P. S. Ahmad, learned counsel appearing for the petitioners submits that the basis of these orders are made on the wrong premises by relying on the stand taken by the respondent No. 3, with reference to being co-sharer of the property. Learned counsel further submits that the respondent No. 3, by his own admissions has disclosed his relation qua the claim on the land, which is recorded by the Tehsildar, Agrarian, rightly and reversed by the orders impugned. Learned counsel further averred that the order passed by the Appellate Court is against a dead person, which is not permissible under law. It is further contended that the Appellate Court as also the Revisional Court had ignored the order passed by the Court of Munsiff in a compromise decree, which had determined the rights of the parties qua the subject. It is further contended that there was no scope for the revenue Courts to enter into the zone of determination of rights of the parties, which is barred by provisions of Land Revenue Act, with application of Sub Clause 2 of Section 26 of the Land Revenue Act.
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Mr. P. S. Ahmad, learned counsel appearing for the petitioners submits that the Appellate as also the Revisional Court has decided the matter qua the claim of respondent No. 3, seeking correction in the revenue entries by entering into the zone of merit, which is not the power and jurisdiction of the revenue Courts. Learned counsel further submits that the Appellate as also the Revisional Court has not also considered the maintainability of the appeal and revision petition, as were barred by limitation. It is submitted that the mutation recorded on 28.05.1986, cannot be reversed in appeal, which is admittedly filed on 18.07.1989 after a period of about three years.
Mr. M. Ayoub Bhat, learned counsel appearing for the respondent No. 3, submits that there is no dispute about the parties being owners in possession of a joint property. It is submitted that the petitioners are legal heirs of the brother of respondent No. 3, which is admitted in paragraph 2 of the writ petition. It is submitted that father of the petitioners had managed the entry of the property to his exclusive name, when as a matter of fact the same was purchased by both viz father of the petitioners and respondent No.
3. Learned counsel further submits that all the points raised in the proceedings pending before the Appellate and Revisional Court, have been dealt with by proper appreciation of the fact and law as also by the records.
Heard learned counsel for the parties, perused the records available and considered the matter.
First what is the scope of challenge about the orders of the Appellate and Revisional Courts in the writ petition, needs to be discussed in the following manner:-
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The writ Court in exercise of powers under Article 226 of the Constitution of India is not making decision with reference to entering into the zone of controversy, which is already settled by the Appellate and Revenue Courts. The only scope for the writ Court in the writ proceedings, wherein the decision of the revenue Courts is challenged has to ensure that these Courts have followed the procedure as established under law, have exercised jurisdiction vested with them and such exercise of jurisdiction has not resulted in miscarriage of justice. On the above stated scope of the writ Court qua challenge to the orders passed by the revenue Courts, it is now to be seen as to whether the Appellate and Revisional Courts have violated these ingredients and not followed the same. It is not the case of the petitioners that the Appellate Court had no jurisdiction to entertain the appeal, seeking reversal of the mutation No. 566, recorded by the Tehsildar, Agrarian, Tral on 28.05.1986 on the subject of the land, but the said decision is challenged on the ground that it is recorded in the case of a dead person.
The Appellate Court on hearing of the appellants and after perusal of the record, recorded the finding that Tehsildar concerned had misconceived the whole matter and not appreciated the claim and without granting an opportunity of being heard to the effected party recorded the mutation, therefore, on these grounds had reversed the mutation and directed the Tehsildar concerned to attest the mutation afresh. The petitioners had filed revision petition against the order of the Collector, Deputy Commissioner, Pulwama, passed on mutation order No. 566 dated 26.05.1993 on the grounds detailed out in the 5 revision with particular reference that the orders were passed in exparte against a dead person and there was no basis available with the Appellate Court to reverse the mutations. The Revisional Court has taken note of the contentions raised with the support of the records, observed that ex-parte proceedings had already been initiated against Ghulam Mohi-ud-Din Tak before his death. It is also mentioned in the order impugned that the land in dispute is recorded in the name of both the brothers viz Ghulam Mohi-ud-Din Tak and Ghulam Ahmad Tak sons of Samad Joo Tak. This position is shown established from Jamabandi 1969-1970.
Feeling aggrieved of the Revisional Court order, petitioners had also filed a review petition taking all the grounds as are detailed out hereinabove. The review petition was also dismissed by holding that the ex-parte proceedings were initiated against Ghulam Mohi-ud-Din Tak, when he was alive, therefore, the basic question is replied by the Revisional Court. It is also held that the limited issue for consideration is about the change effected in the entry relating to the cultivating possession and once entry of the joint ownership of disputed land had been made in the revenue records and subsisted the question arises how the change was affected without proper procedure. It is held that the change so effected has not been made as per the procedural format. The mention is made about the pendency of the decision in a civil suit filed by the respondents, which is compromised by the parties.
The contention raised by the petitioners is that the respondent No. 3 was summoned, served notice, and as per records, choose not to appear, which resulted in ex-parte proceedings. The issue is as to whether the petitioners, on noticing the pendency of the appeal, on the subject of 6 mutation, brought it to the notice of the Appellate Court that the proceedings are against a dead person? Otherwise also, notwithstanding this claim of the petitioners that the impugned orders were passed against a dead person, the scope, as discussed above, is with reference to the powers of the Appellate and Revisional Courts under the Land Revenue Act, which does not permit the Appellate and Revisional Courts to enter into the zone of merits of the case qua the title of the parties. The law on the subject is no more res-integra.
The provision, as discussed above, is as regards the application and the scope of the decision rendered on the proceedings as interpreted by this Court and the Hon'ble Apex Court to the effect that mutation neither creates nor extinguishes the rights of the parties qua title as it only updates the records. The claim, if any, made or pending before the civil Court will be decided in its own merits. It is also made clear that the claim of the petitioners against the respondent No. 3, if any, pending in a civil Court for seeking declaration and injunction qua title, shall not be rejected merely on the basis of the orders of the revenue Courts and the Civil Courts before which the claim is pending shall not get influenced by such revenue entries but decide the claim solely on the basis of its own merits.
The orders impugned are passed by the revenue Courts/authorities are subject to further declaration, if any, or order which may be subsequently passed by the civil Court with application of Sub Clause 2 of Section 26 of the Land Revenue Act.
In the above background, this writ petition being without merit shall stand dismissed. However, the dismissal of the writ petition or allowing of the appeal of respondent No. 3 and dismissal of the revision by the Financial 7 Commissioner, shall not form any impediment for the petitioners to seek declaration, injunction from the civil Court and the Civil Court shall proceed in the matter and while deciding the case shall keep in mind the application of Sub Clause 2 of Section 26 of the Land Revenue Act.
(Ali Mohammad Magrey) Judge SRINAGAR 01.08.2022 "Mohammad Yasin Dar"
Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No MOHAMMAD YASIN DAR 2022.08.02 15:34 I attest to the accuracy and integrity of this document