Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Shah vs Ghulam Qadir Rather & Ors on 17 October, 2022
Author: Sanjay Dhar
Bench: Sanjay Dhar
Sr. No.02
After Notice
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CJ Court
LPA No.98/2018
C/W
CCP(D) No.13/2019
GHULAM MOHAMMAD SHAH ...APPELLANT
Through: - Mr. M. M. Dar, Advocate.
Vs.
GHULAM QADIR RATHER & ORS. ...RESPONDENT(S)
Through: - Mr. B. A. Bashir, Sr. Adv. with
Ms. Asifa Bijlee, Advocate-for R1 & R2.
Mr. Sheikh Mushtaq, AAG-for R3 & R4.
Mr. A. Hanan, Adv. for R5 to R21
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
Sanjay Dhar 'J'
1) The appellant has challenged judgment/order dated 27.09.2018 passed by the learned Writ Court in OWP No.27/2015 titled "Gh. Qadir Rather and another vs. Financial Commissioner, Revenue, & others", whereby the writ petition filed by respondents No.1 and 2 has been allowed.
2) It appears that respondents No.1 and 2 (hereinafter referred to as the writ petitioners) had filed a writ petition before the learned Single LPA No.98/2018 1|Page Judge challenging order dated 31.12.2014 passed by respondent No.3 herein whereby orders passed on mutation Nos.383 and 608 of Estate Lalpora Tehsil Baramulla were set aside and the case was remanded back to the Tehsildar concerned for passing fresh orders in accordance with Muslim Personal Law.
3) The case of the writ petitioners before the Writ Court was that their mother, Mst. Zaina, was married as a Khana Nisheen Dukhter during the life time of her father, namely, Samad. It was averred that immediately after the death of Samad, mutation No.608 with regard to land measuring 11 marlas falling under Khasra No.2059 was attested in the name of Mst. Zaina in the year 1945. Similarly, mutation No.383 of the year 1948 with regard to land measuring 8 kanals 8 marlas falling under Khasra No.2059 was also attested in the name of Mst. Zaina in presence of Mst. Khatji who happened to be the mother of appellant herein. The case of the writ petitioners was that the aforesaid mutations were attested in favour of Mst. Zaina as per the custom and pursuant to the attestation of mutations, name of Mst. Zaina was reflected in the Record of Rights of the year 1960-61. After the death of Mst. Zaina in the year 1990, the property in question devolved upon the writ petitioners and mutation No.1723 dated 13.08.1994 was attested in their favour. It was contended by the writ petitioners that after more than 60 years of attestation of aforesaid mutations, the appellant herein filed a belated revision petition before the Financial Commissioner, Revenue, J&K Srinagar, and the said authority without taking into account the fact that the revision petition was highly belated and that at the relevant LPA No.19/2021 2|Page time according to the custom a Khana Nisheen daughter could inherit property from her father to the exclusion of other legal heirs, allowed the revision petition and set aside the aforesaid mutation orders.
4) The writ petition was contested by the appellant (respondent No.2 in the writ petition) by filing a reply thereto. In his reply, it was submitted by the appellant that pursuant to order dated 31.12.2014 passed by the Financial Commissioner, Revenue, the Tehsildar concerned has passed mutation order No.3726 dated 15.01.2015, whereunder the property of Samad Khan has been mutated in favour of his legal heirs in accordance with Muslim Personal Law. It was also averred that the appellant and the other legal heirs of Mst. Khatji have filed a suit for partition and perpetual injunction against the writ petitioners before the Court of Munsiff, Tangmarg, and in the said suit, an order came to be passed on 19th of August, 2013, whereby the parties were directed to maintain status quo with respect to the suit property. It was contended that because the order of the Financial Commissioner, Revenue, has been given effect by the Tehsildar, as such, the writ petition is not maintainable without laying a challenge to the order of the Tehsildar. It was further contended that no limitation is prescribed for filing a revision petition against an order of mutation. The appellant further denied the existence of any custom whereunder a Khana Nisheen daughter was entitled to inherit the estate of her father to the exclusion of other legal heirs.
5) The learned Writ Court after hearing the parties allowed the writ petition in terms of the impugned judgment. While doing so, the learned LPA No.19/2021 3|Page Writ Court held that even if the Statue may not prescribe time limit for exercise of revisional power, that will not give the authority determining the matter the jurisdiction to unsettle an order after lapse of many decades. According to the learned Writ Court the power has to be exercised within a reasonable time and ordinarily it can be exercised within a period of three years. The Writ Court further held that the Jammu & Kashmir Muslim Personal Law (Shariat) Application Act, 2007, has prospective application and it cannot be made applicable to the cases prior to coming into effect of the said Act. Thus, according to the learned Writ Court, the property in question could not have been mutated in accordance with Muslim Personal Law and that the same had to be done in accordance with the customs prevailing at the relevant time. On these grounds, the learned Writ Court quashed the order dated 31.12.2014 passed by the Financial Commissioner, Revenue.
6) The appellant has challenged the impugned judgment passed by the learned Writ Court on the ground that the writ petitioners had filed an application for amendment of the writ petition but without deciding the said application, the Writ Court has rendered the impugned judgment. It has been further contended that it was specifically pleaded by the appellant before the Writ Court that a civil suit for partition and injunction is pending between the parties before the Civil Court but the Court while passing the impugned judgment has ignored the contention of the appellant that the writ petition, in view of the pendency of the civil suit between the parties, is not maintainable. It has been further contended that by the time the writ petitioners questioned the order LPA No.19/2021 4|Page dated 31.12.2014 passed by the Financial Commissioner, Revenue, the said order had already been implemented by the Tehsildar concerned by passing a fresh order of mutation on 13/15-01/2015 but this aspect of the matter has been overlooked by the Writ Court. It has been contended that the mutation orders had been passed at the back of mother of the appellant, as such, it could not be stated that the appellant had been callous in challenging the mutation orders. It is also contended that there is no limitation prescribed under the Land Revenue Act for filing a revision petition and on this ground also, the judgment of the Writ Court deserves to be set aside.
7) We have heard learned counsel for the parties and perused the impugned judgment passed by the Writ Court, the grounds of appeal and the record of the case.
8) So far as the first ground of challenge laid by the appellant is concerned, it pertains to contention that decision of the case has been rendered by the learned Writ Court without deciding the application for amendment of the writ petition. A perusal of the record of the Writ Court reveals that an application for amendment of the writ petition was made by the writ petitioners whereby they desired to place on record additional facts and grounds of challenge. The fact that the learned Writ Court had not taken into account these additional grounds of challenge would, in no case, have prejudiced the appellant. If at all plea of any prejudice can be raised on account of non-consideration of additional facts and ground contended in the amendment application, the same LPA No.19/2021 5|Page would be available to the writ petitioners and not to the appellant, because the writ petition has been decided without taking into consideration the additional grounds of challenge. By doing so, no prejudice has been caused to the appellant. Thus, the contention of the appellant in this regard is without any merit.
9) The other ground that has been urged by the appellant is that the writ petition is not maintainable because of the pendency of a civil suit between the parties. in this regard it is to be noted that the writ petitioners challenged order dated 31.12.2014 passed by the Financial Commissioner, Revenue, in a revision petition filed by the appellant, whereby the mutation orders issued in their favour were set aside. The proceedings relating to attestation of mutation and proceedings in a partition/injunction suit are different in their scope. So far as the mutation entries are concerned, the same are not the documents of title of the property. These are simply meant for fiscal purpose to enable the Government to collect the revenue. The mutation entries neither create any right, title or interest in the property in favour of a party nor do these entries extinguish any such right of any party. These entries are always subject to the decree of a civil court of competent jurisdiction. Thus, the scope of proceedings challenging the mutation entries and a civil suit to establish right and title to a property and seek its partition is entirely different. Therefore, mere pendency of a civil suit between the parties would not make a writ petition, wherein challenge has been laid to the attestation of mutation or setting aside of LPA No.19/2021 6|Page orders of mutation, not maintainable. The contention of the appellant is, therefore, without merit.
10) It has been next contended by the appellant that the writ petition was not maintainable because of the fact that even prior to filing of the same the order passed by the Financial Commissioner, Revenue had already been implemented and without challenging the consequent orders passed by the Tehsildar concerned, the writ petition could not proceed. The ground urged in this regard by the appellant is without any merit for the reason that once challenge to the order of the Financial Commissioner, Revenue succeeds, all subsequent orders passed consequent to the said order of the Financial Commissioner, Revenue would become automatically non-est in the eyes of law because the moment the foundation of an order of mutation is knocked down, it loses its force in the eyes of law. Therefore, even without challenging the fresh orders passed by the Tehsildar concerned on the basis of the order of the Financial Commissioner, Revenue, the writ petition could very well proceed.
11) The next ground that has been urged by the appellant is that there is no limitation period prescribed for filing a revision petition under the provisions of the Land Revenue Act and even if there is any such prescribed period, because the orders of mutation were passed at the back of the predecessor-in-interest of the appellant, as such, it was open to him to challenge these orders even after the expiry of the said period of limitation LPA No.19/2021 7|Page
12) Section 12 of the Land Revenue Act provides for limitation in respect of appeals, revisions and reviews. As per sub-section (1), limitation of 60 days is provided for appeal to Collector or Assistant Collector of first class whereas 90 days limitation is provided for appeal to Financial Commissioner or Divisional Commissioner. Sub-Section (2) of Section 12 of the said Act provides that such provisions of the Limitation Act as apply to the appeals, applications for revision and review in civil suits shall also apply to appeals, applications for revision and review under the said Act. Section 15 of the Land Revenue Act vests power of suo moto revision upon the Financial Commissioner, Revenue, and Divisional Commissioner.
13) This Court has. in the case of Wali Mohammad Magrey & anr. Vs. Ali Mohammad Gujree & Ors. (LPA(OW) No.29/2018 decided on 20.12.2021), in which one of us (Magrey 'CJ') was a member, after noticing the provisions contained in Sections 12 and 15 of the Land Revenue Act, interpreted the said provision in the following manner:
".....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. The plea or the contention that the law of limitation is not attracted to the revision applications under the Land Revenue Act LPA No.19/2021 8|Page does not hold good. The judgments cited at the Bar and relied upon by Mr. M. A. Qayoom are either not attracted or are distinguishable on facts.
14. It may also be equally relevant to mention here that, of course, there is no limitation period as such 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 : JKJ Soft JKJ/24100. We reiterate the law so laid down."
14) From above the ratio laid down by the Division Bench of this Court, it is clear that even though no period of limitation is prescribed for filing a revision petition against an order of mutation, the same hasto be filed within 90 days. Thus, the contention of the appellant that just because no limitation period has been prescribed for filing a revision petition, a party can file the same at his leisure, is without any merit.
15) In Ghulam Qadir Bhat & Ors. vs. Financial Commissioner (Revenue) & Ors. . (LPAOW No.33/2017 decided on 24.09.2021), another Division Bench of this Court has, while considering a somewhat similar situation, observed as under:
"15. In view of the above, the question that arises is even if no limitation is provided for filing a revision, whether the revision could have been entertained after such a long gap of time so as to disturb the entries on the basis of which the property has exchanged hands and many other entries have come to be recorded subsequently.
16. The law of limitation is based upon the public law doctrine that there should be an end to a litigation and that there ought to be finality attained to a decision with the passage of time. The purpose to provide limitation for taking recourse to a legal remedy is not to destroy the rights of parties but to ensure that parties do not resort to dilatory tactics and seek their LPA No.19/2021 9|Page remedy within the prescribed time or a reasonable time so that the matter may not remain alive forever.
17. In a way, statutes of limitation and prescription are statutes of peace and repose. The interest of state requires that there should be an end to litigation. The public policy therefore requires application of law of limitation. The object of the law of limitation is to prevent disturbance of what has been acquired in equity and justice by long enjoyment and not to restore what may have been lost by party's own inaction."
16) From the above analysis of law on the subject, it is clear that even if it assumed that no period of limitation is prescribed for invoking revisional jurisdiction against an order of mutation, yet it would not give licence to a party to approach the revisional authority at a time of his choice and the revisional authority cannot exercise its revisional power arbitrarily with inordinate delay.
17) The consistent view of the Supreme Court and of this Court is that when no limitation is prescribed for filing a revision petition, the same must be filed within a reasonable time and the reasonable time can by no stretch of imagination be more than six decades, as is the position in the instant case. The only conclusion that can be drawn from the analysis of the law on the subject is that revisional powers cannot be exercised after an inordinate delay of passing of the order sought to be revised without there being any plausible explanation for doing so.
18) As already noted, it has been contended by the appellant that the orders of mutation were passed at the back of his predecessor-in- interest, as such, he was not having knowledge about the passing of these orders. A mere statement that the revision petitioner had come to LPA No.19/2021 10 | P a g e know about the mutation orders on a particular date without there being any material to support the same would not offer a ground to condone the delay in filing the revision petition. In the instant case, the mutation orders, which were subject matter of the revision petition, were passed in the year 1945 and the appellant herein chose to challenge these orders only in the year 2013 i.e., after more than six decades. For all these years the entries in the Record of Rights in respect of the land in question were consistently recorded in favour of the writ petitioners and their predecessors-in-interest. Therefore, it does not lie in the mouth of the appellant to say that he was not aware of the position reflected in the revenue record for all these decades.
19) The learned Financial Commissioner, Revenue, without dealing with these aspects of the matter, has passed the order setting aside the mutation orders thereby unsettling a long-standing position as reflected in the revenue record in respect of the land in question. The revisional authority has exercised its power without recording any satisfaction as to why it has exercised such power after such a long delay, when the predecessors-in-interest of the revision petitioner had not chosen to challenge the mutation order. Thus, it is a classic case of unreasonable delay in exercise of revisional power. Therefore, the learned Writ Court has rightly quashed the order passed by the Financial Commissioner, Revenue.
20) For the foregoing reasons, we do not find any ground to interfere in the impugned judgment passed by the learned Writ Court. The same LPA No.19/2021 11 | P a g e is well-reasoned and lucid and deserves to be upheld. Accordingly, the appeal is dismissed being without any merit.
(SANJAY DHAR) (ALI MOHAMMAD MAGREY)
JUDGE CHIEF JUSTICE
Srinagar
17.10.2022
"Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
LPA No.19/2021 12 | P a g e