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2012 DIGILAW 534 (JK)

Ghulam Nabi Bhat & Anr. v. State & Ors.

2012-08-31

MOHAMMAD YAQOOB MIR

body2012
1. Habib S/O Ramzan Bhat has died leaving behind landed property in village Zewan and Yechnambal. On his death mutation of succession, as is a requirement in terms of Standing Order 23-A, was to be attested. 2. Initially with regard to landed property situated in village Zewan mutation No.652 was presented for attestation by Patwari concerned. The attesting officer has passed order on 28th May, 1998 recording therein that the parties i.e. legal heirs are not present, therefore, matter being useless is dismissed. In the pedigree table as recorded by the Patwari on the said mutation, Habib Bhat deceased is shown surviving by Mst. Khatji (widow) and two sons, namely, Ghulam Nabi Bhat and Jalal-ud-din Bhat. Subsequently for village Zewan afresh mutation No.1465 has been presented for attestation before Naib Tehsildar, Khonmoh. On the said mutation pedigree table is recorded as under:- Ramzan Habib Bhat Khatji (Widow) Jalal-ud-din Bhat Ghulam Nabi Mohammad (Adopted son) Bashir Ahmad Farooq Ahmad The said mutation has been attested on 27.3.2004. The legacy of Habib Bhat situated in village Zewan has been attested in favour of respondents No.4 and 5 Sons of Mohammad shown as adopted son of Habib Bhat, to the extent of one share and then in favour of Ghulam Nabi and Jalal-ud-din, actual sons of deceased Habib Bhat to the extent of two shares. In short two sons i.e. Ghulam Nabi and Jalal-ud-din Bhat and two sons of Mohammad (adopted son), namely, Farooq Ahmad and Bashir Ahmad are shown successors whereas for the landed property situated in Yechnambal, mutation No.176 has been attested on 4th May, 1958 by Tehsildar where-under legacy of Habib has been mutated in favour of two sons Ghulam Nabi, Jalal-ud-din and Mohammad, adopted son of the deceased. 3. All the three mutations were challenged by medium of three separate revision petitions before the Financial Commissioner (Revenue), J&K Srinagar, who decided all the three petitions by a common order dated 06.05.2008. 4. While dealing with the position of mutation No.652, learned Financial Commissioner has correctly recorded that in Para 38 of Standing order 23-A, it is envisaged that if the parties remained absent despite summons at the time mutation is taken up for attestation, the attesting officer shall use powers for attendance of the parties, therefore, rejection of the mutation without adhering to the procedure as prescribed under Standing Order 23-A is illegal. 5. 5. Learned Financial Commissioner while recording contentions of the rival parties vis-a-vis legality or otherwise of the mutation Nos. 176 and 1465, has concluded as under:- “I have considered the contentions of both sides and perused the records available on file. There is no doubt that mutation No.1465 of village Zewan dated 27.3.2004 is the result of mutation No.176 which has been attested way back in 1958. Although there is no time limit set for filing revision petitions yet it is incumbent on the revisional authority to consider the time that has elapsed between the passing of order and filing of revision and take a view as to whether orders passed way back should be reversed. In my view the present revision which seeks to reverse very old orders and which have been carried over in annual records for the last five decades unquestioned and without challenge is not maintainable at this stage. No convincing grounds have been spelt out to conclude otherwise. Therefore, the revision petition is dismissed and the orders passed on mutation Nos.176 dated 4.5.1958 and mutation No.1465 dated 27.3.2004 of village Zewan are upheld. Any interim order passed in the matter is also vacated. File be consigned to records after due completion.” 6. What emerges from the above is that the learned Financial Commissioner has taken a view that though there is no time limit prescribed for invoking revisional powers under Section 15 of the Land Revenue Act as exercisable by Financial Commissioner but mutation No.176 has been attested on 04.05.1958, means five decades back, same has not been challenged, therefore, to interfere with such mutation at this belated stage shall not be permissible. Then has also concluded that mutation No.1465 regarding estate situated in village Zewan attested on 27.3.2004 is, in-effect, in line with the order recorded on mutation No.176 dated 04.05.1958 for the estate situated at Yechnambal. 7. Aggrieved by the order of Financial Commissioner, petitioners who are the real sons of deceased Habib Bhat (estate holder), have filed the instant petition so as to invoke the extraordinary writ jurisdiction of this Court. 8. 7. Aggrieved by the order of Financial Commissioner, petitioners who are the real sons of deceased Habib Bhat (estate holder), have filed the instant petition so as to invoke the extraordinary writ jurisdiction of this Court. 8. Order recorded on mutation No.652 relatable to the estate situated at Zewan has been wrongly rejected, de horse the procedure prescribed under Standing Order 23-A but subsequently regarding same estate mutation afresh has been entered and registered as mutation No.1465, in terms whereof legacy left behind by Habib Bhat in village Zewan has been mutated in favour of his real sons and the sons of adopted son. The position of mutation No.652, as such, has to be ignored. 9. Now the question which emerges for consideration is as to whether Financial Commissioner was legally justified to hold that after five decades it shall not be appropriate to interfere with the order recorded on mutation with regard to estate situated at Yechnambal and then to refuse interference with regard to mutation No.1465 dated 27.3.2004 attested regarding estate situated at village Zewan. 10. It has to be made clear that the attestation of mutation, be it on succession, adoption, decree or be it on any instrument, is to update the revenue records which give rise to presumption in favour of persons recorded therein so as to achieve the object of collecting land revenue. In short, revenue entry is for the fiscal purposes. 11. Learned counsel for the petitioners would contend that no document/instrument evidencing the position of Mohammad to be the adopted son of Habib Bhat was produced, therefore, Patwari concerned was not justified in recording the report in column No.15 of the mutation form in the year 1958. The real sons (petitioners) of Habib Bhat were minors, therefore, there was no occasion for them to challenge the order recorded on the said mutation. 12. This submission cannot be accepted because petitioner No.1 is shown 50 years old whereas petitioner No.2 is shown 52 years old in the caption of this petition which has been presented on 8th March, 2011. That would mean that both petitioners had attained the age of majority in the year 1979-1980. The revision has been preferred before the Financial Commissioner on 29th March, 2005, that means after a lapse of 25 years from the date petitioners attained the age of majority. That would mean that both petitioners had attained the age of majority in the year 1979-1980. The revision has been preferred before the Financial Commissioner on 29th March, 2005, that means after a lapse of 25 years from the date petitioners attained the age of majority. Therefore, to say petitioners at the time of attestation of mutation were minors will not dilute the position of latches on the part of petitioners. 13. Next it is contended by the learned counsel for the petitioners that Mohammad was not the adopted son of Habib so had no right to succeed to the legacy of Habib. 14. To repel this contention learned counsel for the respondents No.4 and 5 produced photocopy of the sale deed dated 27.01.2011, in terms whereof, among others petitioners and respondents No.4 and 5 have sold 2 kanals and 10 marlas of land situated at Yechnambal which, according to learned counsel, was also inherited by the respondents No.4 and 5 from the legacy of deceased Habib Bhat. 15. The important question which now emerges for consideration is as to whether Mohammad, father of respondents No.4 and 5, was the adopted son and whether respondents No.4 and 5 are also in possession of the share from the landed property or other properties left behind by deceased Habib. This question in fact, in view of respective stances of the parties, has given rise to a disputed fact which can be resolved by the parties by having recourse to available remedies which may include institution of civil suit. 16. The entries as exist have presumptive value. The learned Financial Commissioner has rightly declined to interfere with the mutations attested i.e. mutation No.176 attested on 4th May, 1958 vis-a-vis landed property situated at Yechnambal followed by mutation No.1465 dated 27.3.2004 vis-a-vis landed estate situated at village Zewan. 17. In the given circumstances interference with the order impugned passed Financial Commissioner is not warranted. The learned Financial Commissioner has rightly declined to interfere with the mutations attested i.e. mutation No.176 attested on 4th May, 1958 vis-a-vis landed property situated at Yechnambal followed by mutation No.1465 dated 27.3.2004 vis-a-vis landed estate situated at village Zewan. 17. In the given circumstances interference with the order impugned passed Financial Commissioner is not warranted. Upholding the order of Financial Commissioner or the position of mutations shall not stand in the way of petitioners in agitating the matter before the appropriate forum for resolving the controversy relatable to the position of adoption of Mohammad Bhat ( father of respondents No.4 and 5) and the position of possession of the legacy left behind by Habib Bhat coupled with the position of later developments and equally true respondents No.4 and 5 shall not also be precluded to workout remedies as against any invasion against their rights in the hands of petitioners. 18. In the aforesaid background, petition shall stand disposed of along with connected CMP. 19. Record of Financial Commissioner be send back along with copy of this order.