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2006 DIGILAW 301 (JK)

Zeba v. State Of J. &K.

2006-12-08

MANSOOR AHMAD MIR

body2006
1. Petitioners have challenged order dated 6-7-1994 passed by Financial Commissioner, J&K Government, (respondent no. 1), whereby order passed by Director Land Records with powers of Divisional Commissioner, Kashmir, came to be up-held. In order to appreciate the matter in its right perspective, narration of the brief facts of the case is necessary. 2. Malla Rahman, the estate holder R/O Watlar Ganderbal, died leaving behind sons Samad, Subhan and Shaban. His legacy was mutated by the revenue agencies in favour of Samad, Shaban and Subhan in equal shares. Shaban died leaving behind Mst. Khurshi widow and Qadir, son. Subhan also died leaving behind Habib (son). Samad also died leaving behind Mst. Mali and Mst. Zeba as Khananishin daughters. 3. It appears that Habib had contracted marriage with Mst. Khurshi D/O Shaban. Habib died issueless leaving behind Mst. Khurshi, widow. At that point of time, Shaban and Samad were alive as alleged. The legacy of Habib came to be mutated in favour of widow Khurshi. Said fact was not challenged either by Samad or by Shaban. There-after Mst. Khurshi also died and her property came to be mutated in favour of Qadir S/O Shaban vide mutation No. 278 dated 15-8-1958. This mutation was set aside by the respondent no. 1 vide order dated 7-12-1977 with the direction to Tehsildar, Ganderbal to hold enquiry. Accordingly Tehsildar conducted enquiry and passed order dated 2-2-1979 which came to be assailed before Deputy Commissioner, Srinagar, who transferred the same to Assistant Commissioner, Srinagar who set aside the impugned dated 2-2-1979 and directed the mutation to be effected in favour of heirs of Maalla Shaban and Malla Samad in equal shares, so far it related to the property left by Malla Habib as per annexure-P/3. 4. Feeling aggrieved by the said order, parties preferred appeals before Director Land Records -- Divisional Commissioner. It appears that the present petitioners had also filed appeal while as one Ramzan, Subhan and Khazir sons of Malla Qadir had also filed another appeal against the order dated 2-7-1979. The Divisional Commissioner decided both the appeals holding that mutations could not be affected in favour of the petitioners and accordingly set aside the orders impugned in the appeal and directed that the entire estate of Khurshi widow of Shaban be mutated in favour of heirs of Qadir, viz. respondents 3 to 6. The Divisional Commissioner decided both the appeals holding that mutations could not be affected in favour of the petitioners and accordingly set aside the orders impugned in the appeal and directed that the entire estate of Khurshi widow of Shaban be mutated in favour of heirs of Qadir, viz. respondents 3 to 6. Aggrieved by the said order, petitioners preferred revision petition before Financial Commissioner, which came to be dismissed and upholding the order of Director Land Records with powers of Divisional Commissioner. Feeling aggrieved by the order of Director Land Records with powers of Divisional Commissioner, petitioners filed revision petition before the respondent no. 1 which came to be dismissed and the order of Director Land Records with powers of Divisional Commissioner, came to be up-held. 5. Feeling aggrieved of the said order, the petitioners have challenged the order of respondent no. 1 through the medium of present writ petition on the grounds taken in the writ petition. It is in place to mention here that the petitioners have prayed that the mutation be affected in their favour and the order passed by Assistant Commissioner dated 25-2-1985 be restored and had also prayed that respondents be directed to hand over the possession to the petitioners. 6. Who is entitled to possession is a disputed question of fact which can not be gone into by this court in its writ jurisdiction. I am fortified in my view by a judgement of the apex court delivered in case State of Karnataka Vs. KGSD Canteen Employees, 2002 AIR SCW 212. Again the apex court in case Antonio S.C.Pereira Vs. Richardina Noronha (D), 2006 AIR SCW 5155, held that disputed question of title can not be gone through by the writ court and it is for the civil court to decide the question(s) of title. It is profitable to reproduce relevant portion of the judgement hereunder:- "....It is now trite that ordinarily a writ court would not go into a disputed question of title. We have noticed some of the issues pending before different courts only for the purpose of showing that the parties are at loggerheads as regards the title of the property and in particular the legality or validity of the alterations in the terms of the Will....." 7. In terms of para 46 of the standing order 23-A and the relevant provision J&K Land Revenue Act, Svt. In terms of para 46 of the standing order 23-A and the relevant provision J&K Land Revenue Act, Svt. 1996 read with rules made there-under, the revenue official/officer while attesting mutation of succession/inheritance has to take into consideration the factum of possession. It is profitable to reproduce para 46 of the standing orders hereunder: "46. Consider both possession and right, in cases of succession to a right.- In deciding mutation cases, arising out of succession to a right, officers should look to two principal factors, first possession, and second right, both should be considered and orders about the entry to be made, passed, the true facts regarding possession being, however, shown in Kasht column. In cases of transfer, mutation may be ordered only on basis of possession.- In cases of transfer of a right, however, it is necessary to state in the order passed on the mutation, whether possession has actually been transferred on the spot. In cases of sale, mortgage, redemption of mortgage, gift, private partition, ejectment or relinquishment of Kasht by tenants, if it is found that possession has not changed, the mutation should be rejected irrespective of the fact that the parties agree to transfer possession at some future time." Keeping in view the mandate of above referred provision, it could be safely held that impugned order needs no interference. 8. Whether parties re co-sharers is also to be decided and determined by the competent forum. The said question can not be determined in the writ proceedings. The argument of learned counsel for the petitioner that possession of respondents is possession of petitioners, could not be decided and thrashed out at this stage. 9. It is also beaten law of the land that mutation proceedings do not confer title. It is only a fiscal proceeding in order to recover revenue. If any question of title, right, interest is in dispute, that can be determined by a competent forum and not by revenue officer/court in mutation proceedings. This court in a case reported as Mohammad Mir and others Vs. Jabar Mir, 1986 KLJ 93 held as under: "..... At one stage revenue authorities had changed the mutation in favour of Mst. Azizi and held that Mst. Khatji was not entitled to inheritance. On that basis course of inheritance under Mohammedan Law cannot be effected. By mutation inheritance is not decided. Jabar Mir, 1986 KLJ 93 held as under: "..... At one stage revenue authorities had changed the mutation in favour of Mst. Azizi and held that Mst. Khatji was not entitled to inheritance. On that basis course of inheritance under Mohammedan Law cannot be effected. By mutation inheritance is not decided. Mutation proceedings are only fiscal proceedings which do not decide the title but they are attested only to ascertain payment of land revenue on the estate. The decision in earlier suit as regards 5 kanals 8 marlas of the land by the civil courts also cannot be changed because that ha become final." 10. This court in another case titled Angrez Singh Vs. Chaman Lal Gupta, 1985 KLJ 318, held as under: "....... Any order passed in mutation proceedings would not affect the rights of the petitioner to receive compensation which is appointed in the award which has become final. It is well settled that mutation does not confer title. It is the proceeding of a fiscal nature only to determine land revenue and cannot be an evidence about title. It is also surprising to note that the Collector is raising objection as regards the finality and conclusiveness of the Award,. Collector cannot be heard to say anything which effects the finality of the award. Therefore, any order passed in mutation proceedings will not effect the rights of the petitioner. From the reading of the order an mutation passed by the Financial Commissioner, it appears that the Financial Commissioner had mutilated the Hindu law. That seems to have been confused about interest and inheritance in a coparcenery property. Be that as it may, petitioners rights are unaffected and as regards the apportionment of compensation Collector is bound by it." 11. This court also in case Mst. Azizi Vs. Mstr. Fatta, 2003(3) JKJ 626 (HC) has held that mutation proceedings are just for fiscal purposes and can not be set aside and corrected even if finding is erroneous. It is profitable to reproduce relevant portion of the judgement as under: "While exercising writ jurisdiction under article 226, this court is not to examine the matter as an Appellate or Revisional Court. Decision even if, erroneous cannot be corrected in writ jurisdiction." 12. The question whether petitioners are agnates can also not be gone into in this writ petition. It is profitable to reproduce relevant portion of the judgement as under: "While exercising writ jurisdiction under article 226, this court is not to examine the matter as an Appellate or Revisional Court. Decision even if, erroneous cannot be corrected in writ jurisdiction." 12. The question whether petitioners are agnates can also not be gone into in this writ petition. What right/status they had at the time when Subhan died and at the time when Khurshi died, this is intricate question of fact and law which can not be gone into in this writ petition by this court, but can be adjudicated by a competent forum, if any appropriate remedy is available and is availed of. 13. Having glance to the above discussions, this writ petition merits to be dismissed. However, it is made clear that the petitioners are at liberty to seek appropriate remedy from appropriate forum, if available and if not barred or hit by limitation. Writ petition is accordingly dismissed.