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2006 DIGILAW 243 (JK)

Mali v. State Of J. &K.

2006-11-02

MANSOOR AHMAD MIR

body2006
Petitioner, by the medium of this petition, lias sought quashment of the order dated 1st October, 1985 passed by Financial Commissioner, Jammu & Kashmir State in a review petition whereby and whereunder order dated 8th May, 1984 passed by it in the revision petition came to be reviewed and order dated 12th May, 1983 of Divisional Commissioner and order of mutation No.398 (succession mutation) passed by Naib Tehsildar, Srinagar, came to be confirmed. 2. It appears that one Gaffar Ganaie S/O Qadir Ganaie R/O Telbal, Srinagar, died leaving behind four daughters, namely, Mst. Zooni, Mst. Jani, Mst. Ashmi and Mst. Khati. Mutation of succession came to be passed in favour of Mst. Zooni being khana-nisheen daughter vide mutation No.259. It appears that Mst. Zooni died issueless and mutation order No.398 came to be passed by Naib Tehsildar in favour of Mohammad Ganaie and Jamal Ganaie, sons of Sultan Ganaie excluding the sisters of Mst. Zooni deceased- other daughters of Gaffar Ganaie. Petitioner and Mst. Khati filed a revision petition against mutation No.398 of Village Talbal before Divisional Commissioner on 19th June, 1988 after lapse of at least 27 years. The said revision petition came to be dismissed. 3. Feeling aggrieved of the said order Mst. Mali and Mst. Khati and Mohammad Sidiq son of Mst. Ashmi filed revision petition before Financial Commissioner, Jammu & Kashmir State, Srinagar which came to be allowed and the order of Divisional Commissioner and mutation No.398 came to be set-aside and the matter came to be remanded to Tehsildar Srinagar, for attesting the mutation afresh and parties were directed to appear before Tehsildar, Srinagar on 22nd June, 1984. Respondents 4 and 5, sons of Sultan Ganaie, filed a review petition before the Financial J&K State, Srinagar which came to be allowed and thereby order dated 28th May, 1984 passed by Financial Commissioner came to be reviewed and orders of Divisional Commissioner and mutation No.398 came to be upheld. 4. The grievance of the writ petitioner is that the whole estate of Mst. Zooni had devolved upon daughters, namely, Mst. Mali, Mst. Khati and Mst. Ashmi of Gaffar Ganaie but the Naib Tehsildar, on the basis of some alleged compromise before the civil court, passed a mutation order No.398 dated 27lh May, 1950 which is against law. Naib Tehsildar had no jurisdiction to attest such kind of mutation(s). Zooni had devolved upon daughters, namely, Mst. Mali, Mst. Khati and Mst. Ashmi of Gaffar Ganaie but the Naib Tehsildar, on the basis of some alleged compromise before the civil court, passed a mutation order No.398 dated 27lh May, 1950 which is against law. Naib Tehsildar had no jurisdiction to attest such kind of mutation(s). The petitioner was not party in civil suit in which compromise was arrived at as alleged. No ground for reviewing the order dated 28th May, 1984 was available to the respondents 4 and 5. Heard. Perused. Considered. 5. It appears that mutation order came to be challenged after lapse of more than 27 years. The revision petitions were barred by time. The question of limitation was not discussed by Financial Commissioner in the order dated 28th May, 1984. Thus, this was a mistake apparent on the face of record. Financial Commissioner had held vide order dated 28th May, 1984 that Naib Tehsildar was not competent to pass mutation of succession which was not also correct because at the time of attestation of mutation order i.e., prior to 1962, Naib Tehsildar had powers, jurisdiction and was competent to pass and attest succession mutations. In the year 1962 a proviso to sub-clause (4) of Section 24 Land Revenue Act, for short the Act, came to be added which read as under: "24. Making of that part of the annual record which relates to landholders, assignees of revenue and occupancy tenants. - ............... (4) A Revenue officer shall from time to time inquire into the correctness of all entries in the register of mutations and into all such acquisitions as aforesaid coming to his knowledge of which under the foregoing sub-sections, report should have been made to the patwari and an entry made in that register, and shall in each case make such order as he things fit with respect to the entry in the annual record of the right acquired: [Provided that the Government may by rules curtail, limit or restrict the power of any Revenue Officer or class of Revenue Officers to inquire into and dispose of any such case or class of cases.] (This proviso came to be added by Act XXXVIII of 1962.) 6. In terms of mandate of this proviso (supra), para-29 to STANDING ORDER 23-A curtails the powers of Naib Tehsildar to attest disputed mutations. In terms of mandate of this proviso (supra), para-29 to STANDING ORDER 23-A curtails the powers of Naib Tehsildar to attest disputed mutations. Disputed mutations are enumerated in para-64 to Standing Order No.23-A. Keeping in view para-29 of the Standing Order read with para-64 and the proviso to sub-clause (4) to Section 24 of the Act the curtailment came into force in the year 1962. Thus, Naib Tehsildar was having the powers and jurisdiction to pass such kind of mutations till 1962 and this point of law was not brought to the notice of Financial Commissioner at the time of passing the order dated 28th May, 1984. Thus this mistake was also apparent on the face of the record. In the given circumstances Financial Commissioner has rightly passed the impugned order. The core question is what are the rights and interests of the petitioner? 7. It is worthwhile to mention herein that Mst. Khati and Mohammad Sidiq son of Mst. Ashmir are not parties to this writ petition though they were parties before the revisional courts. Thus, they had not challenged the impugned order. 8. It appears that a suit came to be filed before the Civil Court and came to be withdrawn in terms of the alleged compromise. Whether that compromise is binding upon the petitioner is a question of fact and law to be determined after going through proper trial which could not be gone through in this writ petition. Petitioner had challenged the mutation order No.398 dated 27th May, 1956 after lapse of 27 years apparently it was barred by time. She had to explain delay which she had not done either before the Divisional Commissioner or before the Financial Commissioner. 9. This court in a case titled Lt. Col. Sunit Singh (Retd.) vs. The Financial Commissioner, reported in 1989 SLJ 507 held that when a revision is initiated on an application of a party and not in suo moto, limitation applies and the person who files revision petition is bound by the Law of Limitation. This Court in Letters Patent Appeal (Writ) No.52 of 1979 (Rajinder Singh alias Prithipal Singh Versus Mst. This Court in Letters Patent Appeal (Writ) No.52 of 1979 (Rajinder Singh alias Prithipal Singh Versus Mst. Damodri and live others) decided on June 3, 1986 by the Division Bench held:-- "We would like to mention here that any authority empowered to exercise suo moto powers under the law either to review or revision can do so only after notice to the respective parties signifying his intention to the parties effect that the authority chooses to exercise the suo moto powers. In the absence of such an exercise of power when the review or revision is initiated on an application by any party, the authority or the person concerned is bound by the law of limitation." 10. It is beaten law of the land that mutation does not confer title. It is just for the collection of rent. This Court in case titled Suram Singh & Ors. vs. Lal Chand and Ors., reported in 1987 SLJ 345 has held that mutation is only a fiscal entry which does not confer any proprietary right of any person and entries made in the revenue record are not conclusive proof of ownership and mutation attested in favour of any parties does not confer any right upon the said party. It is profitable to reproduce relevant para of the judgment herein:-- "The entries made in the revenue record are not the conclusive proof of ownership and the mutation attested in favour of any one of the parties does not confer any absolute right upon the said party. It was held in AIR 1926 PC 100 that mutation is only a fiscal entry which does not confer any proprietary right on any person.........." 11. It is recorded in the orders of Divisional Commissioner and Financial Commissioner that respondents 4 and 5 are in possession of the estate of Mst. Zoom but learned counsel for the petitioner argued that the writ petition is in possession is also a disputed question of fact which could not be gone through in this writ petition. 12. Having glance of the above discussion, writ petition merits to be dismissed. However, the petitioner is at liberty to seek appropriate remedy before competent forum, if available. Whether the remedy, if availed, would be barred by time or not, is to be determined by that forum. 13. With these observations, writ petition is dismissed along with all connected CMP(s).