Abdul Rahim Dar vs State Of JK And Anr

Rajnesh Oswal, J

This intra court appeal is directed against an Order dated 21.04.2017, whereby the learned Single Judge dismissed the writ petition preferred by the appellant which was preferred against the Order dated 19.03.2014 passed by the Joint Financial Commissioner, (Agrarian Reforms) with the powers of Financial Commissioner (Revenue).

The controversy arose between the appellant and the respondent no. 2 on account of attestation of a mutation no. 474 dated 27.02.1999 pursuant to an oral alleged gift made by the brother of the respondent no. 2 in favour of the appellant regarding the land measuring 2 kanals 6 marlas (1 kanal 17 marlas under Survey No. 12 and 9 karlas under survey No. 13/1), situated at Sadrkote Payeen Sonawari. The said mutation was assailed by the respondent no. 2 before the Additional Deputy Commissioner, (Settlement Officer), as being Collector, and during the pendency of appeal, the appellant had placed on record a status quo order passed by trial court as a result of which Additional Deputy Commissioner (Settlement Officer) kept the proceedings in abeyance on 12.06.2004 due to pendency of civil suit. The respondent no. 2 filed revision petition against said Order dated 12.06.2004 before the learned Joint Financial Commissioner. The Joint Financial Commissioner by virtue of Order dated 19.03.2014 set aside the Order dated 12.06.2004 passed by the Additional Deputy Commissioner (Settlement Officer) as well as the mutation attested in favour of the appellant and directed the Tehsildar Sonawari to conduct denovo enquiry. The appellant impugned the Order dated 19.03.2014 passed by the Joint Financial Commissioner, but the learned Single Judge dismissed the said writ petition vide said Order dated 21.04.2017.

The appellant has impugned the Order dated 21.04.2017, inter alia, on the grounds that the Writ Court and the Financial Commissioner have failed to appreciate that no final order was passed by the Appellate Authority and the learned Single Judge has not considered that the Financial Commissioner has not returned any finding for setting aside the mutations, particularly, when alleged donor had not disputed the alleged oral gift.

Mr. Majid Bashir, learned Counsel appearing for the appellant, argues that if the order of Appellate Authority for keeping the order in abeyance was not proper, the Financial Commissioner could have remanded the matter back to Appellate Authority for deciding it in accordance with law.

Per contra, Ms. Tabasum Jalali, learned counsel appearing for the respondent no. 2 argued that suit for permanent prohibitory injunction pending between the contesting parties had no bearing on the proceedings pending before the Appellate Authority and further that the property allegedly gifted by brother of the respondent no. 2 was un-partitioned and joint property.

Heard and perused the record.

We do not find any infirmity in the finding returned by learned Single Judge that the proceedings, in which, order dated 12.06.2004 was passed, were different vis-à-vis the suit pending before the Munsiff Sumbal and further that there was no occasion for the respondent no. 1 to await the outcome of the suit.

On the first blush, the argument of learned counsel for the appellant appears to be attractive that the Financial Commissioner could have set aside the order dated 12.06.2004 and directed the Appellate Authority to proceed in accordance with law, but on a closer examination the same deserves to be rejected because the perusal of order dated 19. 03.2014 passed by Jt. Financial Commissioner reveals that he was conscious of violation of Standing Order 23-A during attestation of mutation and further a particular finding has been returned by the Jt. Financial Commissioner that at the time mutation was attested, father of the respondent no. 2, the alleged donor, was recorded as owner in the revenue records and the alleged donor did not figure anywhere in the revenue records.

We have examined the judgment impugned and we do not find any cause and reason whatsoever to interfere with the same. The appeal is found to be without merit and is, accordingly, dismissed.