Research › Search › Judgment

J&K High Court · body

2006 DIGILAW 296 (JK)

Fata v. State Of J. &K.

2006-12-06

MANSOOR AHMAD MIR

body2006
1. Petitioner has sought writ of certiorari for quashing order dated 5-4-1994 passed by respondent no. 1 in revision petition No. 17/1992 along with recommendations dated 31-12-1991 made by Additional Commissioner, Kashmir, in revision petitioner No. 574 of 1992 dated 25-2-1993, whereby mutation order No. 648 dated 31-12-1991 relating to land measuring 15 kanals 8 marlas falling under survey No. 169 and 137 village Onagam, passed by Naib Tehsildar in favour of petitioner Ms. Fata came to be set aside. It is necessary to notice brief facts of the case herein. 2. It appears that Mst. Khatji was Khananishin daughter of Fateh Malla and accordingly mutation of inheritance/succession came to be passed in her favour. She died leaving behind Ghulam Hassan son respondent no. 4 and petitioner as daughter. Mutation of inheritance/succession came to be passed in favour of Ghulam Hassan, two shares and one share in favour of Mst. Fata. It appears that Mst. Fata had filed civil suit no. 20/Numbri on 7-5-1975 against her brother Ghulam Hassan Malla -- respondent no. 4. He filed written statement and there-after had chosen to remain absent and accordingly it appears that ex parte proceedings were drawn against him and suit came to be decreed in ex parte wherein Munsiff Bandipora held that plaintiff is entitled to half out of the legacy of Khatji falling under Khewat No. 17 and survey Nos. 137, 169 measuring 15 kanals 8 marlas at Unagam, Bandipora and accordingly decree sheet came to be prepared. 3. It appears that mutation order No. 648 dated 13-12-1991 came to be passed in terms of the decree passed by Munsiff Bandipora, and accordingly entries have been made in the revenue record, indicating petitioner and respondent no. 4 entitled to half share each out of 15 kanlas 8 marlas out of the legacy of Mst. Khatji. Photostat copy of the said mutation is on the file. In column No. 12 of the said mutation order, it is indicated that Munsiff Bandipora in File no. 20 dated 13-12-1975 had passed a decree, which in terms of Collector SDM Sopore was received by the mutating authority. In column No. 14, the Patwari had made a report that in terms of the directions of the said Collector and as per decree sheet, necessary entries were required to be made and accordingly mutation came to be passed.. 20 dated 13-12-1975 had passed a decree, which in terms of Collector SDM Sopore was received by the mutating authority. In column No. 14, the Patwari had made a report that in terms of the directions of the said Collector and as per decree sheet, necessary entries were required to be made and accordingly mutation came to be passed.. Thus the mutation in question came to be passed by Revenue officer Naib Tehsildar in terms of the judgement and decree passed by the civil court read with directions issued by the collector. Feeling aggrieved of mutation order 648, respondent no. 4 filed a revision petition No. 534/1992 before Additional Commissioner who allowed the same vide order dated 31-12-1991 with the recommendations to the Financial Commissioner to set aside the mutation order. Accordingly Financial Commissioner vide his order dated 5-4-1994 accepted the recommendations and set aside the mutation order. 4. The moot point for consideration is whether impugned order passed by the Financial Commissioner merits to be quashed. The answer to this question is in affirmative for the following reasons: 5. It is beaten law of the land that mutation does not create/confer any right. It is only for fiscal purposes in order to collect land revenue. Mutation does not confer any title and is not conclusive proof of the title. It is always subject to the decision of a civil court. All the entries made in the revenue record are rebuttable in terms of section 31 of the Land Revenue Act. But an order/decree passed by a civil court, whether after contest or in ex parte, is binding upon the revenue officers/courts. The revenue officers/courts are under a legal obligation to implement the court orders/decrees in terms of para 103 of the Standing Order 23-A of the Land Revenue Act, 1996. It is profitable to reproduce said provision of law hereunder: "Mutations by order of court.--All the above classes of mutations may include mutations by order of the Court or by order of competent authority. All such cases should be shown in red ink by the Patwari in the last column of the mutation sheet by giving the following particulars. No. of file: date of decision; brief names of parties; name and rank of officer and brief purport of order or decision. All such cases should be shown in red ink by the Patwari in the last column of the mutation sheet by giving the following particulars. No. of file: date of decision; brief names of parties; name and rank of officer and brief purport of order or decision. Mutation must be sanctioned in these cases accordingly to the order received; if it is found that possession is not in accordance with the orders; then the attesting officer should direct that the appropriate entries regarding possession according to the facts be made in the Kasht column." 6. The above said provision of law provides how to record mutations in terms of a court decree. It appears that the Naib Tehsildar has categorically indicated the particulars of the suit i.e. number of file, date of decision, name of the parties and rank of the officer who has passed the decree and has also given a brief purport of the decree. Thus in my opinion, Naib Tehsildar has not committed any illegality while passing the order and the higher authorities i.e. Tehsildar, Assistant Commissioner, Dy. Commissioner, Divisional Commissioner/Additional Commissioner, Financial Commissioner had no jurisdiction to interfere with the said mutation order. If at all respondent no. 4 was aggrieved of the said mutation order, he could have challenged the ex parte decree. 7. The Additional Commissioner as well as the Financial Commissioner have used the word so-called decree of a civil court. The said observation is uncalled for, for the reasons that learned counsel or the petitioner had already filed a certified copies of the judgement and the decree sheet which clearly indicated that the suit was pending before Munsiff, Bandipora, which culminated in the judgement and decree. I had also called record of the said suit from the record room Baramulla and Shri Showkat Ahmad, Head Assistant, District Court Baramulla produced the same which after perusal was returned back to him. Perusal of the record also disclosed that the suit was filed, written statement came to be filed and there-after respondent no. 4 had chosen to remain absent and accordingly ex parte judgement and decree came to be passed. The Naib Tehsilar had not attested any disputed mutation in terms of para 64 of the Standing Order 23-A. 8. For what has been stated above, the writ petition is allowed and the impugned orders are quashed. The mutation order is restored. 4 had chosen to remain absent and accordingly ex parte judgement and decree came to be passed. The Naib Tehsilar had not attested any disputed mutation in terms of para 64 of the Standing Order 23-A. 8. For what has been stated above, the writ petition is allowed and the impugned orders are quashed. The mutation order is restored. However, it is made clear that respondent no. 4 if aggrieved is at liberty to seek appropriate remedy from appropriate forum, if available and if not barred by now. Any observation made hereinabove shall not come in the way of the petitioner to avail the appropriate remedy, if any, under law and if advised.