Khati and Others vs Ali Mohammad Sofi and Others

Mohammad Yaqoob Mir, J.—In terms of judgment dated 13.02.2014, rendered in OWP No. 386/98, the order dated 14.05.2007,

passed by Financial Commissioner in revision No. 62 of 1993 and the order dated 23rd June, 1998, passed in review No. 28/1997, have been

set aside. Dissatisfied therewith, instant appeal has been preferred, wherein it is projected that the revision petition, as was filed before the

Financial Commissioner, was hopelessly barred by limitation, no reason has been recorded for condoning the huge delay. The basic order

recorded on mutation dated 21.01.1962 is based on compromise of the parties. On the death of Ramzan Sofi, mutation of succession regarding

estate left behind by him was to be attested. The proceedings initiated for attestation of mutation of succession were placed before the Naib

Tehsildar concerned. Vis-a-vis landed property left behind by Ramzan Sofi in village Arwa Tehsil Beerwa District Budgam, mutation No. 370 has

been attested on 21st January, 1962. The order has been recorded on the said mutation to the effect that the matter may be presented for

attestation at Village Arwa on 21st January, 1962. On 21st January, 1962, on spot proceedings were initiated. The parties had divulged they be

given time for mutual settlement. Then on the same day i.e., 21st January, 1962, again proceedings have been presented before the Naib Tehsildar

as the co-sharers and four daughters, of the deceased Ramzan Sofi, namely, Mst. Khatji, Mst. Rahti, Mst. Mehra and Mst. Khati, were stated to

have entered into a compromise. The statement of the four daughters of the deceased is shown to have been recorded on the same day separately,

wherein they have agreed that they have entered into compromise and in view of the settlement arrived at, the landed property of Ramzan Sofi shall

be mutated equally i.e., one half in favour of daughters of the deceased and another half in favour of co-sharers. On the basis of said statement,

which is available on writ records, mutation has been attested on 21.01.1962.

In the year 1993, i.e., after a gap of 31 years, the said mutation No. 370 has been assailed by medium of revision petition before Additional

Commissioner, who, after examining the records, made a reference under Section 15(3) of Land Revenue Act recommending setting aside of the

mutation as having been attested in contravention to Muslim Personal Law. The Financial Commissioner accepted the reference and while setting

aside mutation No. 370 vide detailed order dated 14.05.1997, remanded case to Assistant Commissioner, Budgam, for de novo enquiry.

Dissatisfied therewith, review petition was filed by respondent and others. Same has been dismissed by the Financial Commissioner vide order

dated 23rd June, 1998.

Aggrieved thereof, the respondent preferred writ petition (OWP) No. 386/98, which has been decided vide judgment dated 13.02.2014. Both

the orders passed by Financial Commissioner have been set aside. Learned Single Judge while relying on the judgment Mst. Zaina v. Financial

Commissioner & Ors., reported in JKJ Soft JKJ/1501 : SLJ 1983 J & K has in para 5 of the said judgment opined that the order passed on

mutation by Naib Tehsildar being agreed order could not be challenged in revision. Furthermore, subsequent to the attestation of mutation, Mehda

(one of the co-sharer) executed a sale deed, therefore, there is no question of any further de novo enquiry.

Learned counsel for the appellant first contended that mutation No. 370 has been attested by Naib Tehsildar when he was not competent do so.

Buttressing the submission, he would submit that a disputed mutation, in view of Standing Order 23-A, is to be attested by Tehsildar. The order

passed by Naib Tehsildar was without jurisdiction so was rightly set aside by Financial Commissioner. This submission is controverted by learned

counsel for respondents by highlighting that, in fact, proceedings were taken up on 20th January, 1962. Then were taken up on spot i.e., in the

village concerned on 21st January, 1962 when parties sought time to settle the dispute amicably. Then on the same day they had come again that

they have settled the dispute. The statements of daughters of the deceased were separately recorded, based on which mutation was attested.

The submission of learned counsel for respondents is supported firstly by the statement of the four daughters of the deceased, then attestation of

mutation having been attested in their presence. Once the mutation has been attested with the agreement of the parties, it could not be said to be a

disputed mutation and attested without jurisdiction. The contention of learned counsel for the appellant accordingly fails.

Next it is projected by the learned counsel for the appellant that the deceased Ramzan Sofi could only be succeeded by his four daughters, his

nephews had no right to succeed which is the mandate of law of inheritance under Muslim Personal Law. This contention may have substance but

the fact is that the daughters of the deceased have entered into compromise and on the basis of their statements, which have been recorded

separately, mutation has been attested. They have not challenged the mutation order for a period of 31 years. No doubt, period of limitation is not

prescribed for invoking powers of revision under Section 15 of the Land Revenue Act but, nonetheless, in the given facts and circumstances

latches will operate.

Learned counsel for the appellant would contend that this Court in the case of Mst. Akhtara v. State of J & K & Ors., 2009 (1) JKJ 79 [HC] :

2009 (I) S.L.J. 20, has held that the limitation is not prescribed for invoking revisional powers. The judgment relied upon is in the backdrop of

peculiar features of the said case but in the said judgment it has been held that latches may not stand in the way of exercise of revisional power

provided case of mischief or miscarriage of justice is apparent. Here in the present case, parties were present, with their consent mutation has been

attested, then they have not challenged the order for 31 years. In the process there may have some more development, more particularly one i.e.,

one of the respondents Mehda has sold the land in pursuance of a sale deed. Therefore, said judgment is on different set of facts, will not help the

appellant.

Next learned counsel would project that the mutation order was void ab initio, therefore, there is no question of applying the rigour of limitation

it is in the same background, learned Financial Commissioner has set aside the mutation order.

Opposing the said contention, learned counsel for the respondents relied on the judgment rendered by Division Bench of this Court in LPA No.

149/2013 titled Inhabitants of Village Deru v. State of J & K & Ors., dated 22.08.2013, wherein a similar submission was made that void or

illegal order can be challenged at any time and no period of limitation can be invoked to perpetuate such illegality. The said contention has been

repelled by the Court by observing ""we are afraid that such an argument is no longer available to the appellant because even a void order needs to

be challenged within the period prescribed by the Limitation Act.

In the reported judgment, the mutation order was challenged after a period of 25 years. No explanation was tendered for challenging the

mutation after such a long period of 25 years. The orders setting aside mutation were maintained. Now coming to the case in hand. The mutation

has been attested on the basis of statement of the daughters of the deceased and for 31 years same has not been challenged, so they are caught by

latches, the order passed by Financial Commissioner was unsustainable, therefore, learned Single Judge has rightly set aside both the orders.

For the stated reasons, we find no reason so as to interfere with the judgment rendered by the learned Single Judge dated 13.02.2014. It is to

be made clear that attestation of mutation of succession is for updating the revenue records and such records are maintained for fiscal purposes.

Upholding the order of mutation so attested will not deprive the respondents from having recourse to other remedies including filing of civil suit, as

may be available and permissible.

The Letters Patent Appeal is found to be without merit, as such, dismissed along with connected CMP. No order as to costs.