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2008 DIGILAW 233 (JK)

Mohd. Shafi v. Ab. Ahad Wani

2008-06-03

MANSOOR AHMAD MIR

body2008
1. Petitioners have questioned order dated 1-12-2004 passed by respondent no. 4 in a revision petition filed by respondents 1 to 3 on the grounds taken in the writ petition. Before proceeding further, it is apt to notice the brief facts of the case. 2. It appears that there was a long drawn litigation vis-a-vis land measuring 17 kanals, description of which is given in the impugned order, between the parties. Parties have undergone several rounds of litigation both before the revenue courts as well as civil courts, but the matter appears to have not rested anywhere. 3. Estate holder-Rahman Wani died issueless in the year 1962 leaving behind two widows namely Mst. Zooni and Mst. Mali. Mutations came to be affected in their favour, conferring on them limited ownership for lifetime or till their re-marriage. Respondents 1 to 3, claiming to be the nephews of the deceased projected their claim in terms of Muslim law, in their capacity as nearest agnates, filed a civil suit for possession and partition before the court of Judge Small Causes, Srinagar. It appears that Abdul Ahad Wani-respondent no. 1, also had projected his claim of being adopted son of the deceased on the basis of an unregistered gift deed. The suit came to be transferred by the civil court to the District Collector, Budgam, in terms of the Agrarian Reforms Act (hereinafter to be referred to as the Act). The said suit came to be abated by the Collector / Deputy Commissioner, Budgam, vide order dated 1-7-1982, on the ground that Mst. Zooni, one of the widows, had died and her legal representatives were not brought on record. During the pendency of these proceedings, it appears that mutation under section 4 and 8 of the Act came to be attested in favour of the writ petitioners and they were held to be in possession of the land in dispute, as tenants thereof, right from Kharief 1971. Appeal was taken before the Joint Agrarian Reforms Commissioner, against the said mutation order, which came to be dismissed. Respondents 1 to 3, challenged the order of Joint agrarian Reforms Commissioner and the mutations affected under section 4 and 8 of the Act in favour of the writ petitioners through the medium of Revision No. 1409-1415/1986, before the J&K Special Tribunal - respondent no. 4. Respondents 1 to 3, challenged the order of Joint agrarian Reforms Commissioner and the mutations affected under section 4 and 8 of the Act in favour of the writ petitioners through the medium of Revision No. 1409-1415/1986, before the J&K Special Tribunal - respondent no. 4. The mutations under sections 4 and 8 of the Act came to be set aside and case was remanded back to the Collector (Deputy Commissioner), Budgam, to conclude the proceedings. It appears that none of the parties have challenged the said order of remand passed by respondent no. 4. 4. It appears that the Collector (Deputy Commissioner) on remand, decided the matter vide judgment dated 1-4-1989 and attested mutation of inheritance in favour of Mst. Mali only, under customary law. The said order of Collector has also not been questioned by any party. 5. After passing of a considerable period from that date of judgment dated 1-4-1989, the writ petitioners filed an application before the Assistant Settlement Officer, Kashmir (for short ASC), with the prayer to direct Tehsildar to attest mutations under sections 4 and 8 of the Act in their favour, on the basis of a private agreement, which purportedly appears to have been executed by Mst. Mali in favour of writ petitioners. The Tehsildar passed an order in that application on 22-12-1997. Feeling aggrieved, respondents 1 to 3 preferred an appeal before the Commissioner Agrarian Reforms, J&K, Srinagar which came to be dismissed vide order dated 2-12-1998. Respondents 1 to 3 assailed both the orders dated 22-12-1997 passed by Tehsildar and 2-12-1998 passed by Agrarian Reforms Commissioner, through the medium of revision petition before respondent no. 4, which was allowed vide judgment dated 1-12-2004, which is impugned in this writ petition. 6. The question which calls for determination is whether the writ petitions can seek writ of certiorari for quashment of the impugned order. This jurisdiction is to be exercised by the court, when the order impugned is without jurisdiction or when the impugned, on the face of it is illegal and not supported by the law and the facts of the case. This jurisdiction is to be exercised by the court, when the order impugned is without jurisdiction or when the impugned, on the face of it is illegal and not supported by the law and the facts of the case. To ascertain as to whether the impugned order conforms the aforesaid requirements, it is necessary to reproduce the operative part of the impugned order hereunder: "Viewed thus, the revision is allowed and the orders dated 2-12-1998 of the Commissioner, Agrarian Reforms, J&K Srinagar as well as the order dated 22-12-1997 of Assistant Settlement Officer, Kashmir are set aside and the matter is remanded to Tehsildar, Chadura, for holding fresh enquiry to be conducted on spot under rule 4 of the J&K Agrarian Reforms Rules, 1977. In order to ensure that the litigation is resolved, the Tehsildar is directed to give his clear findings in respect of the following questions: - i. Whether late Rahman Wani was in personal cultivation of the land in dispute till his death? ii. Whether after the death of Rahman Wani, his two widows Mst. Mali and Zoni who succeeded him also continued to be in personal cultivation of the land in dispute? iii. In case of findings on question nos. (i) and (ii) are not returned in affirmative, whether respondents were lawful tenants of the land in dispute and if so, from which year and what was the position in Kharief 1971. The Tehsildar should conduct enquiry on spot in a transparent manner and should provide reasonable opportunity to all concerned to produce evidence both oral or documentary in support of their claim. 7. The Tehsildar had passed the order at the back of the respondents 1 to 3 despite of the fact that the parties were litigating before different forums as discussed above, but the controversy has remained unresolved and neither the civil court nor the revenue court has taken the dispute to its logical end. 8. The argument of Mr. Qadri that the revision petition was not maintainable because neither question of law nor question of public importance was involved in the lis is devoid of any force. The questions which were raised and discussed before the Tribunal are questions of law, in the facts and circumstances of the case. 9. For the foregoing reasons, I find no reason to interfere with the order of the learned Tribunal. The revision petition is accordingly dismissed. The questions which were raised and discussed before the Tribunal are questions of law, in the facts and circumstances of the case. 9. For the foregoing reasons, I find no reason to interfere with the order of the learned Tribunal. The revision petition is accordingly dismissed. I hope and trust that the revenue agency will finally decide the matter in terms of the directions passed by the J&K Special Tribunal. It is made clear that any observation made by the Tribunal or by this court shall not effect the rights of the parties in any way and shall not influence the revenue authority while deciding the issue.