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2016 DIGILAW 327 (JK)

Abdul Rashid Bhat v. State of J&K

2016-06-09

MOHAMMAD YAQOOB MIR

body2016
JUDGMENT : 1. Impugned is the order dated 20th November, 2013, passed by the Additional Deputy Commissioner, Kulgam, in terms whereof order dated 24.07.2013 recorded on mutation 1412 has been set aside and Tehsildar has been directed to attest mutation afresh under law. 2. FACTUAL BACKGROUND : (I) Petitioner had filed a suit for declaration and injunction titled “Rashid Bhat Vs. Ahad Zargar” before the Court of Munsiff, Kulgam, on 30th May, 1975 but on the same day defendant therein(father of respondents No.6 and 7) had entered into a compromise based on which decree has been passed declaring the petitioner as owner in possession of land measuring 01 kanal 10 marlas covered by survey No.1267/315 along with three storied house to the extent of half of the house situated at village Boh Damhal Hanjipora. The said decree was carried into effect in the revenue records by attesting mutation No.853 dated 30th September, 1975. (II) Mutation No.853 dated 30th September, 1975, was challenged by medium of appeal before Additional Deputy Commissioner, Anantnag, by respondents No.6 and 7 (sons of the judgment debtor-Ahad Zargar), in the year 2011, means after a gap of 36 years. Appeal has been decided on 08.12.2012. In the said order Additional Deputy Commissioner, Kulgam, has observed as under : “impugned mutation bearing No.853 dated 30/09/1975 has been attested on the basis of a civil court decree passed by Munsiff Kulgam on 30/05/1973 while as factually as per material available on file and report submitted by the District record keeper Sadar court Anantnag no such decree has ever been passed or submitted before said office as such decree is not in existence but instead mutating officer with his eyes closed has by passed the law of inheritance and instead has created decree in his own imagination and attest the mutation in favour of respondents by committing fraud therefore mutation order dated 30/09/1975 bearing number 853 attested by Naib-Tehsildar is set aside as being attested illegally and in contravention of prevalent law and standing orders.” (III) After recording above observations, Tehsildar, Damhal Hanjipora has been directed to attest mutation afresh after conducting de novo enquiry. (IV) The said order dated 08.12.2012 was challenged by the present petitioner before the Divisional Commissioner, Kashmir. (IV) The said order dated 08.12.2012 was challenged by the present petitioner before the Divisional Commissioner, Kashmir. Operative part of the order passed by Divisional Commissioner, Kashmir, reads as under : “In view of above and in terms of Section 15 of J&K Land Revenue Act, 1996, the appeal is treated as Revision and is dismissed. The order passed by Additional Deputy Commissioner, Kulgam dated 08.12.2012 in File No.41/APP/ADCK/R is upheld. However, the applicant is advised to file a fresh application before the Tehsildar concerned for attestation of mutation afresh in light of the decree dated 30.05.1975 passed by the Court of Munsiff, Kulgam, subject to its verification from the concerned court.” (V) In compliance whereof, Tehsildar had requested Munsiff (Judicial Magistrate), Kulgam, that the year indicated in the decree passed in favour of Ab. Rashid Bhat needs to be clarified, whether the actual date of decree is 30.05.1973 or 30.05.1975. In response whereof, Sub Judge, Kulgam, has conveyed to the Tehsildar that the relevant file was called from District Record Keeper, Saddar Court, Anantnag, for perusal. From the perusal of the file it is revealed that the case titled Rashid Bhat Vs. Ahad Zargar was instituted before the Court of Munsiff, Kulgam, on 30.05.1975 with regard to land measuring 01 kanal 10 marlas covered under Survey No.1267/315 of Village Boh Tehsil Damhal Hanjipora, a compromise was effected in between the parties to the suit as a result whereof decree in favour of the plaintiff on the same day i.e. 30.05.1975 has been passed. (VI) After receiving the aforesaid report, Tehsildar has attested mutation No.1412 dated 24.07.2013 in favour of the petitioner (decree holder). Again dissatisfied with this order of mutation, respondents No.6 and 7 filed an appeal before Additional Deputy Commissioner, Kuglam. Again appeal was accepted and while accepting the same, it has been observed that the contesting respondent ought to have filed an application before the Court which had passed the decree dated 30.05.1975 for its due execution and its incorporation in revenue records, only and only then mutating officer was competent to get the said decree incorporated in mutation sheet. Further it has been observed that after a belated time, mutating officer without following the mandate of law has attested the impugned mutation. Finally mutation order No.1412 dated 24.07.2013 has been set aside. Tehsildar has been directed to attest mutation afresh under law. Further it has been observed that after a belated time, mutating officer without following the mandate of law has attested the impugned mutation. Finally mutation order No.1412 dated 24.07.2013 has been set aside. Tehsildar has been directed to attest mutation afresh under law. (VII) Again dissatisfied with the order of Additional Deputy Commissioner, Kulgam, instant petition has been filed. 3. Petitioner has been un-necessarily hit from pillar to the post. The position of decree as it is, has not been challenged anywhere. Father of respondents No.6 and 7 was the party/defendant when the decree was passed on the basis of compromise in the year 1975. 4. After a long gap of 36 years appeal was preferred by respondents No.6 and 7. Ignoring the position of limitation, Additional Deputy Commissioner allowed the 1st appeal by mentioning that the mutation No.853 has been attested on the basis of civil court decree dated 30th May, 1973 which is non-existent, when, admittedly, decree was passed on 30.05.1975. Un-necessarily confusion has been created about date of decree by mentioning it as 30.05.1973. 5. Divisional Commissioner, Kashmir in his order dated 10.06.2013, had advised the petitioner to file application before the Tehsildar concerned for attestation of mutation afresh in the light of the decree dated 30.05.1975 subject to its verification from the concerned court. After proper verification, as referred to above, Tehsildar has attested mutation but again Additional Commissioner has set aside the order by observing that the petitioner should have filed proper application for execution of decree. 6. By one pretext or the other, in first round and now in 2nd round appeals have been accepted and mutations set aside. Position is clear i.e. decree on the basis of compromise has been passed on 30th May, 1975, same was entered into between petitioner and Ahad Zargar (father of respondents No.6 and 7). It is only after death of Ahad Zargar, respondents No.6 and 7 filed 1st appeal, that too after a gap of 36 years and started questioning position of the petitioner. 7. Till date decree has not been challenged. When decree is in existence and the concerned Court has also certified that the suit was instituted and the parties i.e. petitioner and Ahad Zargar (father of respondents No.6 and 7) have entered into a compromise, what else was required to be done. 7. Till date decree has not been challenged. When decree is in existence and the concerned Court has also certified that the suit was instituted and the parties i.e. petitioner and Ahad Zargar (father of respondents No.6 and 7) have entered into a compromise, what else was required to be done. It appears that the respondents No.6 and 7 with some design, ignoring position of compromise having been entered into by their father with the petitioner, have ventured to turn around and to claim something different. 8. Additional Deputy Commissioner, Kulgam, has erred in setting aside the mutation order because the mutation order had been passed in the light of order of the Divisional Commissioner dated 10.06.2013. That order has not been challenged. In the said order Divisional Commissioner has categorically observed that the applicant (petitioner herein) shall file fresh application and Tehsildar shall attest mutation afresh in the light decree dated 30.05.1975 subject to its verification. So all that Tehsildar was required to do in terms of order of Divisional Commissioner was to get the decree verified which he has, as referred to above, and then on the said basis has complied with the directive and attested mutation. How could Additional Deputy Commissioner re-write the judgment as was passed by the Divisional Commissioner, is not known. Same is unheard of. Additional Deputy Commissioner perhaps has fallen prey to the emotions but, in essence, has committed an error by setting aside the order recorded on mutation No.1412 without any legal justification. 9. In the final analysis, petition is allowed. Order passed by the Additional Deputy Commissioner, Kulgam, dated 20.11.2013, is set aside. Order dated 24.07.2013 recorded on mutation No.1412 is upheld. 10. Petition succeeds, as such, shall stand disposed of.