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2020 DIGILAW 720 (JK)

Mst. Mahtaba v. State of J&K

2020-12-31

SANJEEV KUMAR

body2020
Judgment Sanjeev Kumar, J.—Mst. Mahtaba along with her three sons [“the petitioners”] have invoked the extraordinary writ jurisdiction of this Court to quash the order of Divisional Commissioner, Kashmir-Srinagar, dated 07.09.2015, passed in File No.330/Misc. titled Mst. Habla Vs. Mst. Shaha and another and order dated 27th of December, 2017 passed by Financial Commissioner (Revenue) J&K, Srinagar, in File No.765/FC-AP titled Mst. Mahtaba and others vs. Mst. Habla. 2. It may be noted that in terms of order impugned dated 07.09.2015, the Divisional Commissioner has allowed the petition filed by respondent No.4 in terms of Section 105 of the Land Revenue Act read with Partition Rules of 1970 and has called upon Tehsildar, North, Srinagar, to partition the land measuring 21 kanals comprised in Khasra No.397, 388, 410 and 395 situated in Estate Botapora Hazratbal Srinagar (the subject land, for short) by metes and bounds among all the co-sharers as per their respective shares as defined in mutation No.626 dated 05.11.2002. In terms of the impugned order dated 27th of December, 2017, the Financial Commissioner (Revenue) [“the appellant authority”] has dismissed the appeal filed by the writ petitioners and upheld the order of Divisional Commissioner dated 07.09.2015. The appellate authority has directed the Tehsildar concerned to carry out the partition in accordance with the procedure laid down in Section 105 of the Land Revenue Act read with Partition Rules 1970 after giving reasonable opportunity of being heard to the concerned parties. 3. The petitioners have assailed both these orders on variety of grounds. However, before proceeding further to appreciate the grounds of challenge, it would be necessary to briefly notice the material facts. 4. The dispute inter se the parties has a chequered history and its genesis lies in the devolution of estate of one Mehda Bhat who died somewhere in the year 1963 leaving behind his widow, Mst. Khatiji, and four daughters, namely, Mahtaba (petitioner No.1), Habla (respondent No.4), Azizi and Shaha. For better understanding of the issue involved in this petition, it would be pertinent to draw up the pedigree table of the parties: Mehda Bhat Mst. Khatija (Wife) Mahtaba (Daughter) Habla (Daughter) Azizi (Daughter) Shaha(Daughter) Abdul Ahad Bhat (son) Fayaz Ahmad (son) Abdul Rehman Bhat (son) 5. On the death of Mehda Bhat, his estate was ordinarily to devolve on his widow and four daughters as per Shariat. Khatija (Wife) Mahtaba (Daughter) Habla (Daughter) Azizi (Daughter) Shaha(Daughter) Abdul Ahad Bhat (son) Fayaz Ahmad (son) Abdul Rehman Bhat (son) 5. On the death of Mehda Bhat, his estate was ordinarily to devolve on his widow and four daughters as per Shariat. However, the mutation of inheritance was attested in favour of the petitioner No.1 as a Khana-nisheen daughter along with her minor sister Habla (respondent No.4 herein) and widow, Mst. Khatija. This was done by Tehsildar concerned by passing an order vide mutation No.626 dated 11.11.1963. Subsequently, in the year 1977, another mutation i.e. mutation No.1085 dated 12th of May, 1977, came to be attested whereby the name of respondent No.4 was expunged from the records and the whole estate of the deceased mutated in the name of petitioner No.1. 6. Both these mutations became subject matter of challenge before the Financial Commissioner (Revenue) by way of two separate revision petitions filed by respondent No.4. Vide order and judgment dated 14th of August, 2002, the Financial Commissioner accepted both the revision petitions and set aside the orders passed on aforesaid two mutations. The matter was remanded to Settlement Tehsildar, Srinagar, for fresh enquiry and appropriate orders in presence of the parties. 7. In compliance, the Tehsildar concerned conducted a fresh enquiry and attested fresh mutation vide his No.626 dated 05.11.2002, holding all the sisters including petitioner No.1 and respondent No.4 herein entitled to equal shares. This fresh mutation attested by Tehsildar became subject matter of challenge before the Financial Commissioner in a revision petition titled Mst. Mahtaba vs. Mst. Azizi and others. The revision petition was rejected by the Financial Commissioner vide his order dated 08.06.2005. 8. Aggrieved, the petitioner No.1 challenged the order of Financial Commissioner dated 08.06.2005 before this Court in OWP No.369/2005, which was later on withdrawn by petitioner No.1 and the same was, accordingly, dismissed as withdrawn by this Court vide order dated 26th of July, 2006. In this way, the mutation of inheritance attested by Tehsildar Settlement, Srinagar, dated 05.11.2002, holding all the four sisters entitled to equal shares, attained finality. 9. In this way, the mutation of inheritance attested by Tehsildar Settlement, Srinagar, dated 05.11.2002, holding all the four sisters entitled to equal shares, attained finality. 9. Ordinarily, the dispute should have ended here and the parties should have reconciled with the shares allocated to them by Tehsildar, Settlement, vide mutation dated 05.11.2002 but, as the greed has it, the petitioner No.1 devised all ways and means to defeat the rights of her other three sisters and continuously involved them, particularly the respondent No.4, in litigation before civil courts. It is pertinent to note that a suit filed by the petitioner No.1 against her sisters seeking declaration that she being a Khana-nisheen daughter was entitled to inherit the entire estate left behind by her father to the exclusion of her sisters was ultimately dismissed as withdrawn by the Court of 3rd Additional Munsiff, Srinagar, vide its order dated 1st of June, 2015. With the dismissal of aforesaid suit, the oftenly raised issue by the petitioner No.1 that she was a Khana-nisheen daughter of Late Mehda Bhat and entitled to succeed to his estate to the exclusion of other sisters, was also given a quietus by the civil court. 10. With a view to perpetuate her possession and exclude other sisters from the share in the estate of deceased Mehda Bhat, sons of the petitioner No.1 i.e. petitioner No.2 to 4 herein, also filed a suit against the petitioner No.1 in the Court of 4th Additional Munsiff, Srinagar, which was settled before the Lok Adalat on the basis of compromise arrived at inter se mother and sons. Consequently, a decree for declaration and injunction was passed by 4th Additional Munsiff, Srinagar, on 29th of March, 2003. Indisputably, the decree was collusive and binding on none other than the parties. i.e. mother and sons. The petitioner No.1herein made all efforts and attempts to make use of this collusive decree to claim that the civil court had declared petitioners 2 to 4 only the exclusive owners in possession of the subject land. 11. Apart from aforesaid suit, the petitioners 2 to 4 had also filed another suit for permanent prohibitory injunction before the Court of 3rd Additional Munsiff, Srinagar, against the petitioner No.1 and her three sisters including the respondent No.4 herein. The suit was allowed by the trial court vide its judgment and decree dated 29.06.2017. 11. Apart from aforesaid suit, the petitioners 2 to 4 had also filed another suit for permanent prohibitory injunction before the Court of 3rd Additional Munsiff, Srinagar, against the petitioner No.1 and her three sisters including the respondent No.4 herein. The suit was allowed by the trial court vide its judgment and decree dated 29.06.2017. The petitioner No.1, respondent No.4 and two other sisters, namely, Mst. Azizi and Shaha were permanently restrained from causing any sort of interference with the suit property except taking recourse of law as regards their entitlement over the suit property on the basis of inheritance through their common ancestors. 12. The aforesaid judgment and decree was overturned by the 1st appellate court and the judgment of the 1st appellate court was upheld by this Court while dismissing RSA No.16/2019 titled Abdul Ahad Bhat and others vs. Mahtaba and others. 13. While the petitioners were busy in involving respondent No.4 in totally uncalled for and frivolous litigation, the Divisional Commissioner, Kashmir, on an application moved by respondent No.4 in terms of Section 105 of the Land Revenue Act directed Tehsildar, North, Srinagar, to partition the subject land by metes and bounds amongst the co-sharers as per their respective shares defined in mutation No.626 dated 05.11.2002. This was done by the Divisional Commissioner, Kashmir, vide impugned order dated 07.09.2015. Petitioners assailed the order of Divisional Commissioner before the Financial Commissioner, who, vide impugned order dated 27th of December, 2017, concurred with the view of the Divisional Commissioner and relegated the parties to the Tehsildar concerned for partition under Section 105 of the Land Revenue Act read with Partition Rules, 1970. In the aforesaid backdrop, these two orders are impugned in this writ petition. 14. During the course of arguments it is brought to my notice that there is another suit inter se petitioner Abdul Rehman Bhat, Abdul Ahad Bhat, Mahtaba and others for Declaration, Mandatory and Permanent Injunction, in which the Court of District Judge, Srinagar, besides directing parties to maintain status quo on spot, has restrained the Tehsildar North from initiating any unlawful parallel proceedings with regard to the subject property except in due course of law. The suit is essentially inter se the petitioners and any order passed therein would only bind the parties. The suit is essentially inter se the petitioners and any order passed therein would only bind the parties. That apart, the Principal District Judge, Srinagar, in its order dated 16th of November, 2019, has been clear that the Tehsildar, North, shall not initiate any “unlawful parallel proceedings with regard to subject matter except in due course of law.” The direction aforesaid, therefore, cannot come in the way of Tehsildar concerned to give effect to partition. 15. Mr. M. A. Qayoom, learned counsel for the petitioners, has assailed the impugned orders fundamentally on two counts; (1) that the Divisional Commissioner was not competent to entertain an application under Section 105 of the Land Revenue Act for partition, in that, such application should have been filed before the forum of 1st instance i.e. Tehsildar concerned. By entertaining application directly, the Divisional Commissioner has deprived the petitioners of their right to appeal which would have been available to them had the impugned order been passed by Tehsildar; and (2) that the procedure laid down in Section 105 of the Land Revenue Act has not been strictly followed. It is submitted that Section 105 had no application to the instant case for the mutation of inheritance cannot be said to have recorded the share of the parties under Chapter IV of the Act. 16. Mr. J. H. Reshi, learned counsel representing respondent No.4, vehemently submits that the petitioners are not entitled to invoke extraordinary equitable jurisdiction of this Court for the petitioners are guilty of abusing the process of the Court. They left no stone unturned to perpetuate their illegal possession of the subject land and involved the respondent No.4 and her two other sisters in multiple litigation. It is contended that the petitioners were defeated on all fronts but they succeeded in denying legitimate right of the respondent No.4 to succeed to the estate of her father for several decades. He places reliance on several judgments of the Supreme Court to buttress his submissions. On merits, Mr. Reshi submits that the order passed by the Financial Commissioner is perfectly in accordance with the law. 17. He places reliance on several judgments of the Supreme Court to buttress his submissions. On merits, Mr. Reshi submits that the order passed by the Financial Commissioner is perfectly in accordance with the law. 17. Having heard learned counsel for the parties and perused the record, I am of the considered view that both on merits as well as by conduct, the petitioners have disentitled themselves to the exercise of equitable jurisdiction vested in this Court under Article 226 of the Constitution of India. 18. Indubitably, the mutation of inheritance bearing No.626 dated 05.11.2002 attested by Tehsildar Settlement has attained finality with the dismissal of OWP No.369/2005. This position came to be reaffirmed by this Court while dismissing RSA No.16/2019 titled Abdul Ahad Bhat & Ors vs. Mahtaba & Ors. vide order and judgment dated 29th of November, 2019. Once it had become final that the estate of Late Mehda Bhat was liable to be devolved on all the four daughters in equal shares, there remained nothing for the parties to agitate before any forum other than seeking partition of their shares by metes and bounds in terms of Section 105 of the Land Revenue Act read with Partition Rules, 1970. 19. Claim of the petitioner No.1 that she was Khana-nisheen daughter of Late Mehda Bhat had long been turned down by the Revenue Authorities as well as the Civil Court. The mutation of inheritance i.e. mutation No.626 dated 11.11.1963 read with mutation No.1085 dated 12th of May, 1977, whereby the petitioner No.1 had been conferred exclusive rights over the estate left behind by Mehda Bhat, were set aside by the Financial Commissioner vide order and judgment dated 14th of August, 2002 and the mutation attested in pursuance thereto by the Tehsildar Settlement vide his No.626 dated 05.11.2002 was upheld by the Financial Commissioner on 08.06.2005. 20. The petitioner No.1 had assailed the order of Financial Commissioner before this Court in OWP No.369/2005 but the same was later on withdrawn. With the dismissal of aforesaid writ petition as withdrawn, the mutation attained finality. The other litigation inter se petitioner No.1 and petitioners 2 to 4 which culminated into passing of a collusive decree, had no effect on the rights of the daughters to the estate left behind by Late Mehda Bhat. With the dismissal of aforesaid writ petition as withdrawn, the mutation attained finality. The other litigation inter se petitioner No.1 and petitioners 2 to 4 which culminated into passing of a collusive decree, had no effect on the rights of the daughters to the estate left behind by Late Mehda Bhat. In that view of the matter, the respondent No.4 was well within her rights to claim partition and invoke Section 105 of the Land Revenue Act and Partition Rules, 1970. 21. It is true and as very correctly contended by Mr. Qayoom, that in a petition filed under Section 105 of the Land Revenue Act seeking partition of the estate of Late Mehda Bhat, all the legal heirs should have been arrayed as party/respondents. The respondent No.4 only arrayed two of the sisters and no reason is forthcoming as to why Mst. Azizi was left out. 22. Be that as it may, the order passed by the Divisional Commissioner dated 07.09.2015 provided that the partition of the estate of Mehda Bhat shall be conducted by Tehsildar, North, Srinagar, by metes and bounds in terms of Section 105 of Land Revenue Act read with Partition Rules, 1970, among all the co-sharers as per their respective shares defined in mutation No.626 dated 05.11.2002. That being so, no prejudice has been caused to Mst. Azizi by not being a party in the petition for partition. 23. It is also interesting to note that when the order of Divisional Commissioner dated 07.09.2015, impugned in this petition, was challenged by the petitioners, they not only excluded Azizi from the array of parties but they deleted Mst. Shaha who was a party before the Divisional Commissioner. 24. Anyway, Financial Commissioner vide impugned order dated 27th of December, 2017, only concurred with the judgment of the Divisional Commissioner providing further that Tehsildar concerned while effecting partition shall follow the provisions of Section 105 and the Partition Rules, 1970 and shall also give a reasonable opportunity of being heard to the concerned parties. This direction of the Financial Commissioner takes care of the objection of Mr. Qayoom that both Divisional Commissioner and the Financial Commissioner failed to adhere to the provisions of Section 105 of the Land Revenue Act and the Partition Rules, 1970. This direction of the Financial Commissioner takes care of the objection of Mr. Qayoom that both Divisional Commissioner and the Financial Commissioner failed to adhere to the provisions of Section 105 of the Land Revenue Act and the Partition Rules, 1970. The impugned orders do not have the effect of partitioning the property by metes and bounds but only contains a direction to the Tehsildar concerned to do the needful after following the due procedure of law laid down in Section 105 of the Land Revenue Act read with Partition Rules, 1970. 25. This brings me to another objection of Mr. Qayoom that recording of share in a mutation of inheritance does not fall under Chapter IV of the Act and, therefore, Section 105 of the Land Revenue Act was not applicable. 26. There is inherent fallacy in the argument of Mr. Qayoom. Chapter IV of the Land Revenue Act deals with preparation of record of rights and annual records. Section 21 of the Land Revenue Act clearly provides that there shall be prepared a record of rights for each estate and the record of rights for an estate shall include, inter alia, statements showing the nature and extent of interest of persons who are land holders, tenants or assignees of land revenue in the estate etc. and the conditions and liabilities attached thereto. The matters enumerated in Section 21(2) of the Land Revenue Act are enumerative and not exhaustive. 27. Reading Section 21 with the provisions that appear in the Chapter subsequent thereto, it is abundantly clear that any change in rights of the land holders, tenants or assignees effected by way of mutations or otherwise form part of record of rights. Therefore, to say that mutation of inheritance whereby the rights qua the estate of Late Mehda Bhat came to be devolved upon his daughters would not form part of record of rights and Chapter IV of the Land Revenue Act, is totally illogical and not supported by the provisions of Land Revenue Act contained in Chapter IV. The argument is, therefore, rejected. 28. The argument of Mr. Qayoom that Divisional Commissioner was not competent to entertain the petition of the respondent No.4 under Section 105 of the Land Revenue Act is also not supported by any law. The argument is, therefore, rejected. 28. The argument of Mr. Qayoom that Divisional Commissioner was not competent to entertain the petition of the respondent No.4 under Section 105 of the Land Revenue Act is also not supported by any law. Section 105 of the Land Revenue Act confers the power to direct partition on a Revenue Officer and the term “Revenue Officer” is defined in Section 6. The Financial Commissioner, Divisional Commissioner, Collector, Assistant Collector of 1st class and Assistant Collector of 2nd class are all Revenue Officers for the purposes of this Act. Section 3(12) defines Revenue Officer to mean a Revenue Officer having authority under this Act. 29. Conjoint reading of Section 3(12) and Section 6 makes it abundantly clear that the Divisional Commissioner is a Revenue Officer competent to entertain an application under Section 105 of the Land Revenue Act and any order passed by him is appealable before the Financial Commissioner. The jurisdiction of the Divisional Commissioner as Revenue Officer extends to the province headed by him. Mr. Qayoom has not been able to show to this Court any notification issued by the Government to the contrary. 30. Otherwise also, as notice above, the Divisional Commissioner though entertained the petition filed by respondent No.4 in terms of Section 105 of Land Revenue Act but did not actually effects the partition by metes and bounds between the parties. Rather the same was left to the Tehsildar concerned. The Financial Commissioner while upholding the order of Divisional Commissioner further provided that the Tehsildar concerned while effecting partition between the parties shall strictly adhere to the provisions of Section 105 of Land Revenue Act and Partition Rules, 1970 and would provide a reasonable opportunity of being heard to all the parties. In that view of the matter, I find no substance in the argument of learned counsel for the petitioners. 31. For all these reasons, this petition is found to be without any merit and the same is, accordingly, dismissed with all connected CMs. Interim directions, if any, shall stand vacated with immediate effect. 32. Having regard to the fact that the petitioners have all along indulged in frivolous litigation, I am of the view that the ends of justice would be met by imposing exemplary costs which are quantified at Rs.50,000 (rupees fifty thousand) to be paid by the petitioners jointly and severally. Ordered accordingly. 32. Having regard to the fact that the petitioners have all along indulged in frivolous litigation, I am of the view that the ends of justice would be met by imposing exemplary costs which are quantified at Rs.50,000 (rupees fifty thousand) to be paid by the petitioners jointly and severally. Ordered accordingly. The petitioners shall deposit the costs in the Advocates Welfare Fund maintained by the High Court, within a period of four weeks, failing which the amount shall be recovered as land revenue by the concerned Revenue Officer on the certificate to be issued by the Registrar Judicial, Srinagar wing of this Court.