The main legal point established in the judgment is that the mutation was declared non-est due to the Naib Tehsildar's incompetence and violation of statutory procedures.

Respondent No. 1 on the one hand had to migrate due to turmoil the valley is going through and on the other he is deprived of his proprietary rights by Naib Tehsildar Buchhwara by sheer stroke of his pen without hearing him, obviously, the old adage `misfortunes never come alone is aptly attracted traceable to order of mutation dated 28-06-1992 passed against a dead person namely Pandit Prem Nath Jalali favoring another dead person namely Sidiq Bhat one of the beneficiaries of the mutation. Being aggrieved, the order came to be challenged before the Financial Commissioner which was resisted on the ground of being barred by limitation but the objection could not sustain, consequently turned down by order dated 13-08-2003. It is the said order which is impugned by medium of this writ petition contending that appeal has to abate, for, some of the tenants were dead on the date of institution of appeal. To bring home the point, the learned counsel for the petitioner has relied upon the judicial decisions, relevant paras thereof are extracted here under:

Band of Commerce Ltd. Khulna versus Protap Chandra (AIR (33) 1946 Federal Court 15).

".The proper test to be applied in dealing with such cases was adopted by the Allahabad High Court in 54 ALL.280. The learned Judges there said:

"We can find no justification for holding that ignorance of the death, in the absence of negligence or other act or commission for which the applicant can be held to be responsible, should not be held to the sufficient cause within the meaning of the Limitation Act."

Judged by this test the delay up to 6th February 1945 must be held to have been satisfactorily explained."

State of West Bengal versus Manisha (AIR 1965 Calcutta 459). Paras 10 & 15:

"10. In order to prefer and appeal against a decree obtained by a person, who was dead at he time of the filing of the appeal, it would be necessary to make his heirs or legal representative respondents to the appeal. The factum of the death of the decree-holder and names of his heirs or legal representatives may be incorporated for greater safety, in an affidavit accompanying the memorandum of appeal against the heirs of the person, who had obtained the decree.

15. In the result the appeal shall be treated as presented against the heirs of the deceased sole respondent only on April 8, 1963, and the delay in filing the appeal condoned.....The order of admission of the appeal, already made, shall be deemed to be an order made in the appeal as presented against the heirs of the deceased respondent, as if the matter was before us to-day and admitted according to law.

United Commercial Bank versus Dharam Paul Singh (AIR 1989 Himachal Pradesh 56). Paras 3&4:

"3. There cannot be two opinions about the proposition of law that the civil suit having been filed against a dead person cannot be deemed to be a proper suit against his legal representatives. It is further well settled that the provisions of O.22, R.4, CPC. Cannot apply to a situation like this for the simple reason that defendant 2 was not alive on the day when the suit had been instituted. It is only if a defendant dies during the pendency of the suit that the said provisions can be invoked. The above position still leaves the question as to whether legal representatives of defendant 2 can be now added as parties in this very civil suit or not under the provisions of O.1.R, 10, CPC read with S. 153, CPC."

4. In my view, there is no legal impediment in bringing on record the legal representatives of a dependent who is shown to have died before the filing of the original suit for the simple reason that the plaintiff could in any case institute a fresh suit against those legal representatives on the day he moves an application for making them parites....."

Mohamed Ibrahim and others v. Chellammal, AIR 1991 Madras 310. Paras 3 & 4:

"3. This Court had on prior occasions pointed out that Rule 84 of the Civil Rules of Practice should be strictly followed and adhered to by the

Click Here to Read the rest of this document