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2010 DIGILAW 325 (JK)

Suram Chand v. State

2010-06-01

Aftab H.Saikia, Sunil Hali

body2010
Per Sunil Hali, J. 1. Appellant and respondent No.5 claim the property of deceased Balak Ram and his wife, one as a natural heir and the other as an adopted daughter. An adoption deed is stated to have been executed by Balak Ram in favour of respondent No.5, which fact stands affirmed by the civil court, which has passed a decree in favour of the said respondent. The said decree has been challenged by the appellant in a civil suit filed before the trial court on the ground that it has been obtained by collusion, misrepresentation, fraud and coercion. The appellant has claimed that he is the absolute owner of the property in dispute. A prayer for permanent injunction has also been sought against respondent No.5, restraining her from interfering in the possession of the said property. That suit is subjudice before the trial court. 2. In collateral proceedings, mutations attested in favour of the appellant by the Tehsildar, were questioned by respondent No.5 before the respondent No.3-Additional Deputy Commissioner, Udhampur, who vide his orders dt. 18th of Sept’04, set aside the mutations. Aggrieved by these orders, an appeal was preferred before the respondent No.2-Settlement Commissioner, Jammu. The said respondent after hearing the parties, dismissed the appeal vide order dt. 17th of Aug’05, and directed the Tehsildar concerned to attest the mutations in favour of the parties in equal shares. The aforementioned order came to be challenged in the writ petition, which stands dismissed by a learned Single Judge of this court vide order impugned dt. 30th of June’08. It is this order which is impugned in the present appeal before us. 3. We have heard learned counsel for the parties. 4. A perusal of order impugned shows that the learned Single Judge has dismissed the writ petition on two grounds:- i/ that the appellant (writ petitioner) has suppressed a material fact regarding pendency of the suit filed by the appellant before the trial court relating to the subject matter of the controversy; ii/ that the appellant having taken recourse to efficacious remedy before the trial court by seeking annulment of the decree passed in favour of private respondent No.5 on the basis of which she had claimed attestation of mutation, cannot invoke writ jurisdiction of this court to seek adjudication of those issues which are subjudice before the civil court. 5. 5. In order to examine the correctness of the judgment passed by the learned Single Judge, it is necessary to understand the power of the writ court in the matter where an alternate remedy in the shape of civil suit has been preferred. 6. The rule of exhaustion of remedies is not an inflexible rule. It is a rule of policy, convenience and discretion rather than of law. It is a rule of practice rather than that of jurisdiction. Existence of an alternate remedy does not affect the High Court’s jurisdiction under Article 226. So it is not always obligated to relegate the petitioner to other remedy available to him. 7. The controversy in the civil suit relates to setting aside of the decree which according to the appellant was obtained by fraud and mis-representation. The issue involved was as to whether private respondent No.5 was adopted by deceased Balak Ram and as to whether said adoption could be made by a Hindu parent in presence of a natural heir. 8. In the matter before the learned writ court, the controversy was as to whether mutation was rightly executed in favour of the appellant or not. As rightly observed by the learned Single Judge, mutation by itself, does not confer any title. It only reflects the factual position regarding the status of the parties. It is also not in dispute that the legal title is to be determined in a civil court. Attestation of mutation would not confer that title. However, remedy as provided under the Land Revenue Act, to seek quashment of mutation is always available to the aggrieved party. The appellant has rightly chosen the forum for setting aside the order of revenue appellate court who has set aside the mutation attested in his favour. The appellant, in our view, has availed the remedy available to him and it cannot be said that pendency of the civil suit debars him from invoking the writ jurisdiction by challenging the order passed by the revenue appellate court whereby the mutation attested in his favour has been set aside. 9. As indicated above, the learned Single Judge has dismissed the writ petition purely on the ground that since the appellant has filed a civil suit regarding the same subject matter, he cannot be permitted to pursue his remedy by invoking writ jurisdiction of this court. 9. As indicated above, the learned Single Judge has dismissed the writ petition purely on the ground that since the appellant has filed a civil suit regarding the same subject matter, he cannot be permitted to pursue his remedy by invoking writ jurisdiction of this court. This, in our view, is not the correct position of law. Setting aside the mutation by a revenue appellate court can be questioned by way of writ jurisdiction under Article 226. In the civil suit, the court is required to determine whether respondent No.5 could be legally adopted by deceased Balak Ram in presence of natural heir i.e. the appellant. The outcome of the said civil suit will determine the rights of the parties. The learned Single Judge, however, has not addressed itself to this issue as to whether mutation has been set aside rightly or wrongly by the revenue authorities. 10. The factum of "suppressio-veri" is based upon the principle that material facts are required to be disclosed which have a direct affect on the outcome of the proceedings. Every fact is not a material fact. By not disclosing the fact that civil suit was pending, it cannot be said that a material fact was suppressed from the writ court. As indicated above, the issue relating to correctness or otherwise of the mutation is to be determined by the revenue authority. The outcome of these proceedings have no direct bearing on the outcome of the civil court’s decree as any order passed in mutation will be subject to the civil proceedings. In our view, the appellant cannot be found guilty of having suppressed the material fact regarding filing of the civil suit. 11. For the reasons mentioned above, this appeal is allowed and order impugned dt. 30th of June’08, is set aside. We, accordingly, remand the matter to the learned writ court for disposal in accordance with the law. 12. The writ petition shall be listed before the appropriate Bench immediately after ensuing vacations. 13. Appeal is disposed of accordingly.