Jammu & Kashmir High Court - Srinagar Bench
Abdul Rehman Mir vs Steel Authority Of India Limited & Ors on 29 September, 2015
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No. 205 of 2013 CMP No. 311 of 2013 Abdul Rehman Mir Petitioners Joint Financial Commissioner and Ors. Respondents !Mr. M. A. Qayoom, Advocate ^Mr. G. A. Lone, Advocate Honble Mr. Justice Muzaffar Hussain Attar, Judge Date: 29/09/2015 : J U D G M E N T :
(Oral) The petitioner and respondent no. 3 have locked horns in respect of the immovable property left behind by one Salam Rather. The property of deceased Salam Rather was mutated in favour of the petitioner vide order on mutation no. 923 dated 21st November, 1988. In the mutation order, the petitioner is stated to be adopted son of deceased Salam Rather.
In view of the material placed on record, it appears that order on mutation no. 789 U/S 4 of Agrarian Reforms Act, and order on mutation no. 791 U/S 8 of Agrarian Reforms Act, was also passed in favour of the petitioner in respect of the landed property of deceased Salam Rather.
Respondent no. 3 challenged these mutation orders in a statutory appeal which was decided by the appropriate authority on 26th April, 2007 and both the orders passed in section 4 and 8 of Agrarian Reforms Act, were set aside and matter was send to Tehsildar Kangan and he was directed that after conducting an enquiry he shall pass orders about the property of deceased Salam Rather in favour of his legal heirs. This order has attained finality having not been challenged by present petitioner.
The order on mutation no. 923 was also challenged by respondent no. 3. The said order has been set aside by the Joint Financial Commissioner (AR) vide his order dated 27th November, 2012. The Tehsildar Kangan has been directed to attest the mutation afresh as per prevailing law. The attestation on mutation is directed to be done on spot in presence of interested parties. It is this order which is called in question in the writ petition.
Mr. M. A. Qayoom, learned counsel for the petitioner submitted that the Joint Financial Commissioner (AR), in the impugned order, has recorded finding that respondent no. 3 is khananisheen daughter and is entitled to a share from the landed property of her uncle Salam Rather.
Learned counsel submitted that there was no basis or material available with the Joint Financial commissioner (AR) to record such a finding.
Learned counsel also submitted that after coming into force, the J&K Muslim Personal Law (Shariat) Application Act, 2007 (for short Act of 2007), the inheritance matters are strictly governed by the Muslim Personal Law.
Learned counsel submitted that Mst. Khurshi predeceased Salam Rather, her brother thus respondent no. 3 would not be entitled to inherit Salam Rather under Muslim Law.
Learned counsel prayed that this petition be disposed of in the light of the submissions made at bar.
Mr. G. A. Lone, learned counsel, appearing for respondent no. 3 raised objection about the maintainability of the writ petition on the ground that the petitioner has suppressed the fact of dismissal of the suit which was instituted by him in the Court of Munsiff Kangan against respondent no. 3, inasmuch as, he has not brought to the notice of the Court that the suit was dismissed prior to filing of writ petition.
Learned counsel in order to support his contention referred to Annexure R4 of the reply affidavit to show that the suit has been dismissed on 30th October, 2010, whereas the petitioner has placed on record of the writ petition copy of interim injunction order passed in the said suit by Munsiff Kangan on 14th June, 2007.
Learned counsel in support of his contention referred to Para 36 of the Judgment of Supreme Court reported in case titled K. D. Sharma v/s Steel Authority of India Limited & Ors reported in (2008) 12 SCC 481.
Learned counsel further submitted that the petitioners claim of being adopted son of deceased Salam Rather, after coming into force the Act of 2007 cannot be accepted and it is only Muslim Personal Law which would determine the rights of the parties in the matter of inheritance.
Learned counsel submitted that the claim of the petitioner of being an adopted son and seeking inheritance on the basis of that status will no longer help him in view of the law laid down by the Letters Patent Appeal (LPA) Bench of this Court in case titled Ahad Sheikh v/s Murad Ahmad Shah & Ors reported in 2012 (4) JKJ 860 (HC). Learned counsel in support of his contention made specific reference to Para 10 of the Judgment.
Learned counsel also referred to standing order 23-A and submitted that even the claim of being an adopted son could not survive because for that the petitioner has to have a registered adoption deed or a deed coupled with possession of the property.
Learned counsel further submitted that Mst. Khurshi did not predecease Salam Rather and, thus, respondent no. 3 is entitled to inherit the estate of Salam Rather in accordance with Muslim Personal Law. Learned counsel also submitted that after coming into force the Act of 2007, the rights of the parties are to be determined in accordance with Muslim Personal Law.
The question of petitioner being an adopted son or respondent no. 3 being a khananisheen daughter are rendered inconsequential after coming into force the Act of 2007. The parties in the matter of inheritance will be governed by the Muslim Personal Law which legal position, otherwise, is admitted by both the learned counsel at the bar. The findings recorded by the Tehsildar when he passed the order on mutation no. 923 in favour of petitioner of being an adopted son, or by Joint Financial Commissioner (AR) in favour of respondent no. 3 of her being a khananisheen daughter would be inconsequential and said status would not determine the rights of the parties in the matter of inheritance, as already stated same will be governed and determined by the Muslim Personal Law.
The only issue to be determined is the date of death of Mst. Khurshi through whom the parties claim to inherit Salam Rather. In view of the conflicting stand taken by the parties about the date of death of Mst. Khurshi, the issue would require to be settled by the appropriate forum. This disputed question of fact cannot be determined in the writ proceedings.
This issue shall have to be settled by the appropriate authority by considering the evidence on the material produced by the parties.
The Judgments referred to at bar in view of the peculiar facts of this case would not result in dismissal of the writ petition.
For the above stated reasons and in view of the observations made in this order this writ petition is disposed of. Assistant Commissioner Revenue, District Ganderbal, is directed to conduct an enquiry in view of the observations made in this order and pass fresh order on mutation in respect of the estate of deceased Salam Rather. In the enquiry the petitioner and respondent no. 3 shall be afforded opportunity of hearing and any document which may be produced by them shall also be considered. The fresh enquiry shall be concluded preferably within six weeks from the date copy of this order is served.
The order which may be passed by the Assistant Commissioner Revenue will be subject to any Civil Court decree that may be passed by any Civil Court if the parties seek adjudication of their rights by the Civil Court also.
(Muzaffar Hussain Attar) Judge SRINAGAR 29/09/2015 Sakeena