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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Anant Singh, J.
Aziz Wani - Appellant
Versus
Director Consolidation - Respondent
Writ Petition No. 77/1967
Decided On : 19 August, 1970
CONSOLIDATION OF HOLDINGS ACT - SECTION 112 OF EVIDENCE ACT - APPLICABILITY TO MUSLIMS IN KASHMIR - LEGITIMACY OF A CHILD BORN DURING VALID MARRIAGE - PRESUMPTION UNDER SECTION 112 - RELEVANCE OF COMPROMISE IN REVENUE COURT - ADVERSE POSSESSION BY CO-SHARER.
Fact of the Case:
Dispute over the estate of Mst. Shah Bibi, deceased wife of Mehda Wani and sister of the petitioner, Aziz Wani. Mehda Wani claimed the estate as a collateral of Mst. Shah Bibi's father, alleging that the petitioner was an adopted son and not entitled to succeed. The petitioner claimed to be the natural son of Mohd. Wani, born in lawful wedlock after six months of the marriage of his parents.
Finding of the Court:
The Consolidation Officer, Settlement Officer, and Director of Consolidation Srinagar erred in their decisions by failing to consider the evidence adduced by the parties, particularly the applicability of Section 112 of the Evidence Act, the question of adverse possession, and the effect of the compromise arrived at between the parties in the Revenue Court.
Issues: 1. Whether Section 112 of the Evidence Act applies to Muslims in Kashmir. 2. Whether the petitioner was the legitimate son of Mohd. Wani. 3. Whether the compromise in the Revenue Court created a title in favor of the petitioner. 4. Whether the petitioner acquired title by adverse possession.
Ratio Decidendi: 1. Section 112 of the Evidence Act applies to Muslims in Kashmir as it was made applicable to the State under the Shri Pratap Jammu and Kashmir Laws Consolidation Act, 1977. 2. The petitioner was born after six months of the marriage of his parents and there was no evidence to show that the parties to the marriage had no access to each other at any time when he could have been begotten. Therefore, under Section 112 of the Evidence Act, a conclusive presumption of legitimacy arises in favor of the petitioner. 3. The compromise in the Revenue Court did not create a title in favor of the petitioner as it was filed before a Revenue Court and not a Civil Court. 4. The petitioner's plea of adverse possession was not considered by the lower courts and should be adjudicated upon after considering all the evidence on record.
Final Decision: The orders and judgments of the Consolidation Officer, Settlement Officer, and Director of Consolidation Srinagar were set aside, and the case was remanded to the Consolidation Officer for a decision according to law after considering all the evidence and the law bearing on it.
2. The impugned orders were made under the provisions of Jammu and Kashmir, Consolidation of Holding Act, 1960 referred to hereafter as the Act in a litigation between the petitioner, Aziz Wani on one hand, and Mohada, father of Respondents 2 to 5 on the other. Mehada, died during the pendency of the appeal. The petitioner claims to be the natural son of Mohd. Wani born in lawful wedlock after six months of the marriage of his parents. He had a sister, Mst. Shah Bibi, born of the same parents. She was married to Mehda Wani the father of Respondents 2 to 5, and his father, Qadir Wani was the brother of the petitioners father, Mohamad Wani.
3. The present dispute relates to the Estate of Mst. Shah Bibi. According to the petitioner, a dispute had arisen between him, and his sister, Mst. Shah Bibi, after the death of their common father, Mohd. Wani. A compromise was effected in 1993 B. K. in the court of Wazir Wazarat Baramulla. Mehada acted in that compromise as attorney for his wife, Mst. Shah Bibi. Under the terms of the compromise, one-half of the estate of Mohd. Wani was to remain with the petitioner, and for the remaining half it was stipulated that Mst. Shah Bibi would hold it for life alone, and that on her death, the same would revert to the petitioner, if she left no issue of her own. She died issuless nearly 20 years back, when the petitioner came in possession of her estate and has continued in possession of the same to the exclusion of Respondents 2 to 5, and their father for over 15 years. They have had no concern with her estate whatsoever.
4. The village Pattan, where the disputed land is situate, was declared a consolidation area under the Act in 1962. The Consolidation Officer, started hearing disputes in the matter of Consolidation of Holdings. Mehda Wani, the father of Respondents 2 to 5, and the husband of Mst Shah Bibi claimed the estate of Mst. Shah Bibi, as a collateral of her father, Mohd. Wani, alleging that the petitioner was only an adopted son, and not the natural son of Mohd. Wani, and, therefore, not entitled to succeed to the estate of Mst. Shah Bibi.
5. The Consolidation Officer has found against the petitioner. His decision was upheld in appeal by the Settlement Officer, and on revision by Respondent. No. 1. The petitioner has filed this writ petition against their decisions challenging their legality on various grounds.
6. It is urged on behalf of the petitioner that the Consolidation Officer did not consider the evidence adduced on behalf of the parties, but he has held the petitioner as an adopted, and not the real son of Mohd. Wani as was his case, only on the basis of an order of the then Wazir Wazarat, Baramulla passed in appeal No. 28 of 2002 as in Exhibit P I, which had only related to the question of mutation in a Revenue proceeding in place of the petitioners father. It is said that any order made by a Revenue Court with regard to mutation proceeding cannot decide the question of title, and, therefore, the doctrine of estoppel was not applicable as has been applied by the Consolidation Officer.
7. Next it is urged that the petitioner, as a defendant, in the proceeding before the Consolidation Officer, had claimed the estate of Mst. Shah Bibi, by adverse possession, having been in hostile possession thereof to the exclusion of the father of Respondents 2 to 5, but the Consolidation Officer did not consider this issue at all.
8. Next it is contended that before the Consolidation Officer, a plea had been taken on the basis of the presumption arising under the provision of Section 112 of the Evidence Act, that he was the leg
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