Abdul Rehman Najar vs Financial Commissioner and Others

Syed Bashir-Ud-Din, J.—Petitioner and respondents 3 to 7 are brothers. Petitioner's mother is the first wife of Abdul Sattar Najar, on

whose death his father contracted second marriage and out of wedlock respondents 3 to 7 are born. Petitioner claims that respondents 3 to 7 got

the entire property of the father, though, they gifted land measuring 3 Kanals and 10 marlas under Khasra Nos. 4176/2855, 742, 743, 744 and

746 situated in Estate Anchar Tehsil Srinagar to petitioner. On the basis of this oral gift mutation, No. 2555 was entered and ordered in favour of

petitioner in revenue records. However his brothers the respondents filed a revision petition before Divisional Commissioner (respondent No. 2)

who while accepting petitioner-respondent's case referred it for orders to Financial Commissioner (respondent who No. 1) who vide order dated

29.9.98 accepted the revision petition and set aside the mutation. Against the order petitioner filed a review before respondent No. 1 which too

was rejected on 29.9.98. Both the orders in revision and review are challenged in the petition on the ground that the revision petition was barred

by time and yet it was allowed. The oral gift under Muslim Personal Law is valid and yet mutation was refused on the basis of such oral gift. The

Agrarian Reforms Act was not applicable to the case.

In reply contesting respondents 3 to 7 have raised a dispute with regard to the factum and validity of the oral gift. It is even disputed that the

possession has been at all given to petitioner. It is stated that no plea of limitation was ever taken before Divisional Commissioner or Financial

Commissioner. The writ involved disputed question of fact. The mutation in this case is not to confer any title. Petitioner has alternate remedy.

Heard and perused.

The initial entery and recording of mutation under No. 2555, by Tehsildar is not denied. The basis of the mutation is stated to be oral gift in

favour of the petitioner by contesting respondents. However, the correctness of the mutation entery and factum of gift is denied by the above

respondents. In revision mutation has been set aside, as both the forums of Divisional Commissioner and Financial Commissioner, have come to

the conclusion that the mutation cannot be sustained on assertion of the oral gift. The contention that the revision has been entertained after

limitation, is turned down by the revisional court as also in review by the Financial Commissioner. In fact what is contested is title of petitioner to

the land in question based on the oral gift. On the one hand petitioner contends that there has been oral gift and possession has been given to him,

whereas on the other hand the alleged donors contesting respondents 3 to 7, assert that no gift, oral or otherwise, has been made of the land and

the possession of the land is with these respondents. The entery and mutation is stated to be not based on facts. In such circumstances petitioner

has clear alternative remedy before the proper forum to establish title and also possession of the land, if it be so. As disputed questions are raised

the matter shall have to be determined on enquiry on evidence. The writ court cannot enter the erena of disputed facts and judicial review is not

available in the circumstances as placed before court, in this case. Whether Agrarian Reforms Act has any bearing on the matter is open to be

taken a closer look in proper proceedings. After all, the mutation enterics are fiscal in nature and in the facts and circumstances of this case, do not

confer any title to the parties.

In result, the petition is dismissed.