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2017 DIGILAW 908 (JK)

Rajan Samotra v. Financial Commissioner

2017-10-04

TASHI RABSTAN

body2017
JUDGMENT : Tashi Rabstan, J. 1. Petitioners pray for setting aside orders dated 28.04.1980 passed by Tehsildar, Udhampur and 23.09.2008 passed by Financial Commissioner (Revenue), Jammu. In addition, they pray for a direction to attest the mutation of the land, forming subject matter of mutation No. 1268 of Village Barola, Tehsil Udhampur. 2. The facts briefly stated in the petition are that one Dina S/o. Sona was owner of land situated in village Barola Tehsil Udhampur. After his demise, mutation No. 1268 was attested on 28.04.1980 in favour of respondent No. 2 on the basis he being adopted son of deceased Dina. Against the said mutation, an appeal was filed by the petitioner No. 2 and one Faqir, before Deputy Commissioner Udhampur, who vide order dated 30.04.1981 set aside the mutation by holding that adoption was inconsistent with provisions of Hindu Adoption and Maintenance Act. A revision against the order dated 30.04.1981 was filed by respondent No. 2 before Divisional Commissioner, Jammu, who reported the case to Financial Commissioner for its acceptance with his opinion that the Rule 64 of Standing Order No. 23-A clearly provides that if adoption is by a registered document, then mutation should be entered in the name of adopted son and revenue authority cannot decide the issue of adoption deed, in as much as it is the Civil Court to decide as to whether the deed is bad in law or not. The revision was transferred to Joint Financial Commissioner, Jammu who after hearing the parties vide order dated 20.04.1993, rejected the recommendations made by Divisional Commissioner, Jammu and upheld order of Deputy Commissioner, Udhampur. He also directed Tehsildar Settlement, Udhampur to conduct denovo enquiry and pass orders strictly under rules. Thereafter, respondent No. 2 filed OWP No. 273/1995 which was disposed of by this Court vide order dated 12.04.2002 by setting aside order dated 20.04.1993 passed by Joint Financial Commissioner, Jammu. As a consequence, the Financial Commissioner, Jammu vide order dated 23.09.2008 accepted the reference made by Divisional Commissioner, Jammu to the effect revenue courts cannot adjudicate upon the validity of adoption deed and set aside the order of Deputy Commissioner Udhampur whereas mutation was upheld. It is this order of which petitioner is aggrieved to knock the doors of this Court with writ petition in hand. 3. It is this order of which petitioner is aggrieved to knock the doors of this Court with writ petition in hand. 3. On notice, respondent No. 2 has filed the objections, contending therein that he was adopted by one Dina Nath as his son vide adoption deed dated 31.05.1971 duly registered by Sub Registrar, Udhampur which was challenged by petitioner's father in a civil suit, but same was dismissed on 14.01.1974. It is further contended that on the directions issued by this Court in OWP No. 273/1975, respondent No. 1 has rightly accepted the reference made by Divisional Commissioner, Jammu by stating that issue of adoption cannot be dealt with by the revenue courts/authorities more particularly when it was dealt by a civil court by dismissing the same. It is also contended that mutation of inheritance No. 1268, dated 28.04.1980 with regard to property of deceased Dina Nath was rightly attested in favour of respondent No. 2 which too was finally upheld by respondent No. 1. Therefore, according to respondent No. 2, order impugned does not suffer from any illegality. 4. Heard learned counsel for the parties, considered their submissions and perused the writ record. 5. Learned counsel for the petitioners argued that the order impugned dated 23.09.2008 has been passed against the law and facts of the case, in fact the Deputy Commissioner, Udhampur has correctly passed order dated 30.04.1981 pointing out therein the factors which militated against the validity of adoption, however, respondent No. 1 while passing the order impugned has not considered the order passed by Deputy Commissioner, Udhampur. He further argued that even if the adoption deed was registered yet the factum of the deed could not have deprived the deceased Dina to dispose his property through the medium of testamentary disposition of property by making a will, in this regard. However, as per Section 13 of Hindu Adoption and Maintenance Act, respondent No. 1 has completely ignored this aspect of the matter. It is also argued that deceased Dina has not adopted respondent No. 2 even he himself never admitted that deceased Dina was adoptive father, therefore, the order passed by Deputy Commissioner, Udhampur did not suffer from any infirmity and on the contrary it was based on cogent reason which could not have been overlooked by respondent No. 1 while passing the order impugned. The main thrust of arguments of petitioner is that respondent No. 1 without determining the issue of adoption in his order accepted the reference made by Divisional Commissioner, Jammu and set aside the order passed by Deputy Commissioner, Udhampur. It is further argued by learned counsel that in view of Section 16 of Hindu Adoption and Maintenance Act, it was open to the parties to disprove such deed of adoption in an independent proceeding. 6. Per contra, learned counsel appearing for the respondents argued that petitioner has already challenged the adoption deed dated 31.05.1971 before Sub Judge, Udhampur in a civil suit on 05.07.1971 which was dismissed in default and for non prosecution on 14.01.1974, therefore, respondent No. 1 has rightly considered the issue in light of directions issued by this Court in OWP No. 273/1995 and has accepted the reference made by Divisional Commissioner, Jammu. 7. Perusal of record reveals that the order of Joint Financial Commissioner, Jammu dated 20.04.1993 was challenged before this Court in writ petition (OWP No. 273/1995). This Court vide order dated 12.04.2002 quashed the order of Joint Financial Commissioner, Jammu and remanded the matter back to Joint Financial Commissioner, Jammu with a direction that a notice be taken, if any restoration application has been filed in declaration suit, by respondent-petitioner herein, which was dismissed in default and non-prosecution. 8. The Financial Commissioner, Jammu (respondent No. 1) had to see only that whether any application was filed for restoration of declaration suit, dismissed in default by civil court on 14.01.1974. Respondent No. 1 accordingly considered this aspect of the matter and found that no subsequent orders had been passed by the civil court after 14.01.1974, therefore the order dated 14.01.1974 of the civil court attained finality. Thus respondent No. 1 accepted the reference made by Divisional Commissioner, Jammu and set aside the order passed by Deputy Commissioner, Udhampur. 9. The dispute with regard to the validity of adoption is not a dispute in respect of which a revenue court has exclusive jurisdiction. Such a dispute is a matter well within the jurisdiction of a civil court. Therefore, it cannot be within the exclusive jurisdiction of the revenue court to determine the legal character of an individual, whether he is an adopted son or not. My view is fortified by judgment rendered by Apex Court in Ramchandra Dagdu Sonavane & Ors. Such a dispute is a matter well within the jurisdiction of a civil court. Therefore, it cannot be within the exclusive jurisdiction of the revenue court to determine the legal character of an individual, whether he is an adopted son or not. My view is fortified by judgment rendered by Apex Court in Ramchandra Dagdu Sonavane & Ors. v. Vithu Hira Mahar & Ors. reported as (2009) 10 SCC 273 wherein it has been held that "the question whether the adoption is valid or not pertains to the status and legal character of an individual, which falls within the purview of Section 34 of the Specific Relief Act, 1963. The Apex Court further held that when a person claims on the basis of adoption, such a question cannot be decided by the Collector and can only be decided by a civil court." 10. In present case, petitioner has already questioned the validity of adoption deed by filing a suit before the Civil Court and the same was dismissed on 14.01.1974 and the said dismissal order attained its finality as it has not been assailed by any one from the contesting parties. The respondent No. 1, therefore has rightly accepted the reference made by Divisional Commissioner, Jammu and set aside the order passed by Deputy Commissioner, Udhampur. The order impugned is well reasoned and there is no legal infirmity in it, as such need not to be interfered with. In that view of the matter, writ petition is devoid of merit and liable to be dismissed. 11. For all what has been discussed above, this petition is dismissed along with connected MP(s). Interim direction if any, shall stand vacated.