Research › Search › Judgment

J&K High Court · body

2017 DIGILAW 288 (JK)

Khaliq Ganie v. Riyaz Ahmad

2017-06-30

KOSSAR AHMAD QURESHI

body2017
JUDGMENT : KOSSAR AHMAD QURESHI, J. (MEMBER) 1. This revision was filed against the order passed by Commissioner Agrarian Reforms/ADC, Shopian on 29.01.2014. The brief facts giving rise to the instant revision petition are that the father of petitioner Mohammad Ganie all along his life has been tenant of land under impugned mutation. He has been in cultivating possession of this land as tenant thereof in Kharif 1971. After implementation of Agrarian Reforms Act prospective ownership rights were conferred upon Mohammad Ganie by virtue of Section 4 Mutation No. 388 dated 24.12.1986. Mohammad Ganie has died in year 1993 before full ownership rights could be vested in his favour and this position is admitted by the parties and there is no dispute regarding the same. 2. That after death of Mohammad Ganie his legal heirs including petitioner inherited the prospective ownership rights of Mohammad Ganie as per section 28 of Agrarian Reforms Act read with section 67 of Tenancy Act. The legal heirs of deceased Mohammad Ganie entered into a private agreement in terms of section 12 of Agrarian Reforms Act, with ex-owner of the land. This Agreement was registered by Tehsildar in the capacity of being Sub-Registrar for the purpose on 22.10.2003. That on the basis of this Private Agreement Mutation No. 558 under section 12 was attested on 30.01.2004. 3. The respondents No. 1 filed appeal against the mutation No. 558 and the appeal stand accepted by the ADC Shopian on 29.01.2014 which is impugned. The petitioner being aggrieved of the impugned order, challenged the same before this Tribunal on various grounds mentioned in the memo of appeal. 4. The respondent No. 1 has submitted that the revision petition has filed by the petitioner has died its legal death due to the death of revisionist Khaliq Ganie, who has died issueless. The self-styled adopted son Mohammad Ganie has sought substitution of the deceased revisionist in the capacity of adopted son on the basis of Sham deeds, adoption deed dated 04.03.2004, family settlement deed dated 25.06.2005 and declaration deed dated 24.02.2015. The execution of three deeds in regard to the alleged adoption of Mohammad Ashraf Rather by Khaliq Ganie itself provide sufficient ground to suspect their validity as well as legality. The execution of three deeds in regard to the alleged adoption of Mohammad Ashraf Rather by Khaliq Ganie itself provide sufficient ground to suspect their validity as well as legality. All the three deeds on the basis of which Mohammad Ashraf Rather has sought substitution as legal representative of deceased Khaliq Ganie have been put to challenge by Abdul Rehman Ganie, brother of Khaliq Ganie. That because of Shariat Act 2007, the self-styled adopted son of Mohammad Ganie could not succeed to the demised estate of Mohammad Ganie. 5. The respondent No. 4 cannot take refuge under section 21(2) to the effect that the Revisional authority can suo-moto exercise revision powers as revision petition filed by the Khaliq Ganie is also not maintainable in view of the facts, that respondent No. 4 had not joined Khaliq Ganie as petitioner. 6. The Learned counsel for the respondents further submitted that revision petition under section 21 of Agrarian reforms Act is maintainable only when a final order has been passed by the Commissioner and a question of law in the case or public interest is involved in the case. An order sought to be revised has to pass two legal tests, one it must be final order, 2nd it must involve a question of law or public interest. The order impugned in the revision petition is not a final order on the face of it. The ADC Shopian (Commissioner) has remanded the case to Tehsildar, Shopian with a direction to pass fresh orders after visiting the spot in presence of the concerned parties. 7. Counsel for the respondent No. 3, 5 and 6 has submitted that after the death of Mohammad Ganie his legal heirs are entitled to the same status by the operation of the rules of succession as the law is clear in this behalf as narrated in section 28 of the Agrarian reforms Act which deals with rights and liabilities of prospective owner. Further submitted that order impugned be set aside and be remanded back to the appropriate authority to decide the rights of the parties strictly in accordance with the Shariat Application Act. 8. Further submitted that order impugned be set aside and be remanded back to the appropriate authority to decide the rights of the parties strictly in accordance with the Shariat Application Act. 8. Counsel for the respondent No. 4 and legal heirs of respondent No. 2 has submitted that the above titled revision petition is pending in this Tribunal and same is true and correct and merits to be accepted as respondent No. 1 Reyaz Ahmad She, without any right or locus-standi had filed appeal against Mutation No. 558 before ADC/Agrarian Reforms Shopian and Riyaz Ahmad She(Contesting Respondent No. 1) is not in any manner aggrieved of this mutation, nor has he any concern whatsoever with this mutation in question. ADC/Agrarian reforms Commissioner, Shopian while making the impugned order has transgressed his jurisdiction and has usurped the jurisdiction of Civil Court and has passed a "Declaratory Decree" in the shape of impugned order, whereby he has wrongly declared contesting respondent (Riyaz Ahmad She) as adopted son of Mohammad Ganie. Such a jurisdiction is not vested in ADC and as such impugned order is without jurisdiction and merits to be rejected. 9. Heard the learned counsel for the parties, perused the material available on the file, record submitted by the court below and I have gone through the written arguments submitted by the counsel for the parties. 10. During the proceedings, the Khaliq Ganie died and one Mohammad Ashraf Rather adopted son of Khaliq Ganie has moved an application for substitution as petitioner in place of deceased petitioner has taken grounds that the deceased petitioner is survived by the applicant as adopted son which is evident from the documents executed by the petitioner in favour of the applicant who is seeking substitution as petitioner. The details of these documents are Registered Deed of adoption dated 04.03.2004, Registered Deed of family settlement dated 25.06.2005 and Registered Deed of Declaration dated 24.02.2015. All these Registered Deeds have till date not been set aside by any court of competent jurisdiction thereby applicant merits and deserves to be heard in the revision petition as applicant admittedly is in peaceful possession of the whole landed property of Khaliq Ganie (petitioner). Since Khaliq Ganie was an old man, who was survived only by applicant as his adopted son, who used to take care of Khaliq Ganie during his life time as well as the land in question. Since Khaliq Ganie was an old man, who was survived only by applicant as his adopted son, who used to take care of Khaliq Ganie during his life time as well as the land in question. The counsel for the respondent No. 1 has raised various objections to this application and has submitted that application moved by the adopted son of Khaliq Ganie is not maintainable in the present form, as the adoption is not permissible under Muslim law. The Adoption Deed alleged to have executed on 04.03.2004 is a sham document made with a design to deprive the real legal heirs of the estate of Khaliq Ganie. The family settlement deed made on 25.01.2005 and the deed of declaration dated 24.02.2015 are sham deeds of title manufactured by the applicant to deprive the real legal heirs and successors-in-interest of the deceased Khaliq Ganie of their right of inheritance. 11. While adjudicating upon the rival arguments put-forth by the counsel for the parties to the application for substitution in place of deceased petitioner moved by the adopted son of deceased Khaliq Ganie petitioner, the counsel for the applicant has made out a strong grounds from substitution of applicant in place of deceased petitioner in the above titled revision, therefore, on behalf of Mohammad Ashraf Rather adopted son of Khaliq Ganie R/O Vehil Chatwate, Shopian with the prayer of being substituted in place of deceased petitioner in the above titled revision petition is allowed and Mr. Mohammad Ashraf is substituted in place of deceased petitioner. To this effect, the office is directed to make necessary insertions in the index. 12. Admittedly the father of petitioner Mohammad Ganie has been tenant of land in question. In this revision petition so many issues have been given birth by the order impugned passed by the ADC/Commissioner Agrarian Reforms Shopian. Issue No. 1. Can ADC declare a person "Adopted" that too on the basis of an unregistered Will Deed? Issue No. 2 was Respondent No. 1 adopted by Mohammad Ganie? Issue No. 3. Respondent No. 1 claims adoption on the basis of unregistered Will Deed. Is the same permitted under law? Issue No. 4. After 2007 can a case be decided on the basis of adoption? Issue No. 5. Who has the right to file an appeal under agrarian Reforms Act? Issue No. 6. Has ADC the jurisdiction to set aside a Registered Agreement? Is the same permitted under law? Issue No. 4. After 2007 can a case be decided on the basis of adoption? Issue No. 5. Who has the right to file an appeal under agrarian Reforms Act? Issue No. 6. Has ADC the jurisdiction to set aside a Registered Agreement? Issue No. 7. Can a mutation attested on the basis of Registered Agreement Deed be set aside by ADC? Issue No. 8. Can an order of appellate authority sustain in the eyes of law when the same is not based on any sought of evidence? Issue No. 9. Can an appellate order passed in violation of Order 41 Rule 31 of CPC sustain in the eyes of law? Issue No. 10. Can ADC remand a case/dispute to Tehsildar for deciding and passing of orders thereupon? 13. After implementation of Agrarian Reforms Act prospective ownership rights were conferred upon Mohammad Ganie by virtue of section 4 Mutation No. 388 dated 24.12.1986. Mohammad Ganie had died in the year 1993 before full ownership rights could be vested in his favour and after his death his legal heirs inherited the prospective ownership rights of Mohammad Ganie as per Section 28 of Agrarian Reforms Act read with Section 67 of Tenancy Act and legal heirs of deceased Mohammad Ganie entered into a Private Agreement with ex-owner of the land. This agreement was registered in the capacity of being Sub-Registrar for the purpose on 22.10.2003. On the basis of registered Private Agreement mutation No. 558 under section 12 was attested on 30.01.2004 and this mutation has been attested strictly as per law, rules and procedure. 14. It is pertinent to mention here that none of the legal heirs of the deceased Mohammad Ganie are aggrieved of either the Registered Private Agreement or the Mutation in question, nor has any one among his legal heirs ever questioned the Registered Private Agreement or the Mutation or the spot position in any manner whatsoever. Unfortunately, respondent No. 1 who is a stranger, without any right, rhyme, reason and locus-standi filed a frivolous, time barred and non-maintainable appeal against this Section 12 mutation No. 558 before ADC. The appeal on the face of it was liable to be rejected. But unfortunately ADC has not understood the controversy before him. Unfortunately, respondent No. 1 who is a stranger, without any right, rhyme, reason and locus-standi filed a frivolous, time barred and non-maintainable appeal against this Section 12 mutation No. 558 before ADC. The appeal on the face of it was liable to be rejected. But unfortunately ADC has not understood the controversy before him. ADC by virtue of the impugned order has conferred the status of adoption upon respondent No. 1 that too without any evidence and merely on the basis of some unregistered Will Deed which is not permitted under law and without any jurisdiction set aside the Registered Agreement and section 12 Mutation attested there upon. 15. In response to issue No. 1, "Declaration or conferment of status is the sole prerogative of a Civil Court of Competent Jurisdiction. Revenue authorities have no such jurisdiction vested in them. Hence ADC's impugned order declaring respondent No. 1 as adopted son of Mohammad Ganie is patently without jurisdiction. Assumption of adoption on the basis of Will Deed is not permitted under law, unless the factum of adoption is proved before a Civil Court of competent jurisdiction as otherwise even the Will Deed will be rendered inoperative and ineffective. 16. In response to issue No. 2, "Mohammad Ganie has never adopted respondent No. 1, nor was there any occasion for him to do so, especially when he already had three sons and four daughters and there is no Registered Deed of adoption which could prove the same. Registered Deed of adoption has been defined as a Deed between Natural father and adoptive father. In the absence of such a Deed, no question of adoption arises. Till date such a status has never been claimed by respondent No. 1 before any court of competent jurisdiction, which proves that he himself is sure that he was never adopted by Mohammad Ganie". 17. In response to issue No. 3, "some un-registered so-called Will Deed was presented by respondent No. 1 before ADC wherein respondent No. 1 has been pronounced as adopted son of Mohammad Ganie. In such a cause as per the law laid down by Apex Court, respondent No. 1 could not get any benefit, neither of adopted son nor of Will Deed. In such a cause as per the law laid down by Apex Court, respondent No. 1 could not get any benefit, neither of adopted son nor of Will Deed. In such a situation only a Civil Court of Competent jurisdiction can declare the status of a person as held by Hon'ble High Court in case titled "[JKJ Soft JKJ/21120] Mohd. Ismail v. Noor Ud Din" reported in JKLR 1986 page 992. Unfortunately ADC has failed to follow law, rules and procedure and has made impugned order which is illegal in the eyes of law. 18. In response to issue No. 4, "The ADC has made impugned order on 29.01.2014 wherein he has declared respondent No. 1 as adopted son of deceased Mohammad Ganie. Adoption is an incident of Custom. Shariat(Application) Act has already come in force in year 2007. By virtue of this Act Custom has ceased to apply in cases where parties are Muslims. As such any prayer based on Customary law has become illegal after passing of Shariat (Application) Act of 2007. ADC has not only failed to do so but has made impugned order conferring status of adopted son upon respondent No. 1, which is against Express provisions of Shariat (Application) Act of 2007". 19. In response to issue No. 5, "An appeal under section 21(1) of Agrarian Reforms Act can be filed only by an "aggrieved person". In the present case, appellant before ADC (present respondent No. 1) at all was/is not an aggrieved person, as he at all has no concern, neither with the land in question nor with the inheritance of Mohammad Ganie. None of his legal rights is either involved or has been infringed or taken away in any manner whatsoever. But unfortunately, ADC has not looked into this basic aspect of the case which is clearly proved by the inheritance Mutation of Mohammad Ganie". 20. In response to issue No. 6, "by way of impugned order ADC has set aside the Registered Private Agreement also. This shows the height of ignorance of ADC. A registered Private agreement in terms of section 12 of Agrarian Reforms Act can only be set aside by a Civil Court of competent jurisdiction and not by ADC. ADC has no such jurisdiction. Here again ADC usurped the jurisdiction vested in Civil Court. 21. This shows the height of ignorance of ADC. A registered Private agreement in terms of section 12 of Agrarian Reforms Act can only be set aside by a Civil Court of competent jurisdiction and not by ADC. ADC has no such jurisdiction. Here again ADC usurped the jurisdiction vested in Civil Court. 21. In response to issue No. 7, "Established position of law is that a mutation attested on the basis of a registered document cannot be set aside unless that registered document is challenged and set-aside by a Civil court of competent jurisdiction. In the present case till date the Registered Document/Agreement has neither been challenged before any competent forum not to speak of setting aside the same. Hence ADC has no jurisdiction to interfere with the mutation in question". 22. In response to issue No. 8, "Impugned order of ADC is all perverse. Impugned order is not based upon any evidence. ADC has not taken any evidence and counter evidence on record. Impugned order is based merely on surmises and conjectures which is not allowed under law. ADC was acting as a first appellate authority and as such was duty bound to decide all the issues within his jurisdiction at the thresh hold of evidence and counter evidence. But in the impugned order neither issues are framed nor evidence is taken on any of the issues involved in the case. Height of illegality committed by ADC is that even the condonation of delay order passed by him is not based on any sought of evidence or reason. Delay has been condoned in utter violation of law, Order 41 Rule 3A of CPC. What was the reasonable cause submitted by appellant and what were the reasons for ADC to condone the delay are all un-known". 23. In response to issue No. 9, "impugned order is all vague, non-speaking and confusing. There is no cohesion/unity in the impugned order. Impugned order is not based on any reason. As such impugned order is no judicial order in the eyes of law. Impugned order is a glaring violation of order 41 Rule 31 of CPC. 23. In response to issue No. 9, "impugned order is all vague, non-speaking and confusing. There is no cohesion/unity in the impugned order. Impugned order is not based on any reason. As such impugned order is no judicial order in the eyes of law. Impugned order is a glaring violation of order 41 Rule 31 of CPC. Under the said law a judgment of the appellate court shall be in writing and shall state:- a. The points for determination; b. The decision thereon; c. The reasons for the decision; and d. Where the decree appealed from is reversed or varied, the relief to which the appellant is entitled 24. Unfortunately in the impugned order none of the essential ingredients are there so to make it a judicial order in the eyes of law. 25. In response to issue No. 10, "the so-called remand order is not a remand order in terms of Civil Procedure Code. ADC seems to be ignorant as to what constituted a remand order under law. Firstly, the law laid down on the subject under Order 41 Rule, 23, 23A, 24, 25 & 26A. Secondly, an order remanding a case with the direction to dispose off the case according to law is a final order. ADC has no powers to dispose off a case by remanding the same to Tehsildar under Agrarian Reforms Act, without deciding the same finally. Nor has Tehsildar the jurisdiction under the said Act to decide upon any dispute. There is no provision of law under which Tehsildar has jurisdiction to hear or adjudge upon any dispute. Hence the order of ADC is patently without jurisdiction as held in a Civil Judgment by this Tribunal". 26. The respondents allegation that the Sham Deeds are apparently a legal contravene to deprive the other legal heirs of their rights in succession to the share of Khaliq Ganie in the Tenancy Land Act is far off truth as Deeds are Registered that too in the different years cannot be say that Deeds have been prepared apparently a legal contravene to deprive the legal heirs. Viewed thus, and keeping observations into consideration, revision petition is accepted and impugned order of ADC/Agrarian Reforms Commissioner Shopian is quashed. The revision is accordingly disposed of and shall go to records after its due completion. Lower court file, if called, shall send back along with the copy of this order.