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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
MOHAMMAD YAQOOB MIR, J.
Abdul Rashid Bhat - Petitioner
Vs.
State of J&K & Ors. - Respondents
OWP No. 1810 of 2013
Decided On : 09-06-2016
Mutation - Land Dispute - J&K Land Revenue Act, 1996 - Section 15
Fact of the Case:
The petitioner filed a suit for declaration and injunction in 1975, and a compromise decree was passed in their favor. The mutation based on this decree was attested in 1975. The mutation was later challenged after 36 years, leading to a series of appeals and orders for fresh attestation.
Finding of the Court:
The court found that the mutation order was attested in compliance with the decree and subsequent orders, and the challenges to the mutation were unfounded. The Additional Deputy Commissioner erred in setting aside the mutation order without legal justification.
Issues: The issues revolved around the validity of the mutation based on a compromise decree, the timing of challenges to the mutation, and the compliance with court orders for fresh attestation.
Ratio Decidendi: The court emphasized the importance of complying with court decrees and orders, the lack of legal justification for setting aside the mutation, and the need for proper verification before challenging mutation orders.
Final Decision: The petition was allowed, and the order setting aside the mutation was set aside. The original mutation order was upheld, and the petition succeeded.
1. Impugned is the order dated 20th November, 2013, passed by the Additional Deputy Commissioner, Kulgam, in terms whereof order dated 24.07.2013 recorded on mutation 1412 has been set aside and Tehsildar has been directed to attest mutation afresh under law.
2. FACTUAL BACKGROUND :
(I) Petitioner had filed a suit for declaration and injunction titled “Rashid Bhat Vs. Ahad Zargar” before the Court of Munsiff, Kulgam, on 30th May, 1975 but on the same day defendant therein(father of respondents No.6 and 7) had entered into a compromise based on which decree has been passed declaring the petitioner as owner in possession of land measuring 01 kanal 10 marlas covered by survey No.1267/315 along with three storied house to the extent of half of the house situated at village Boh Damhal Hanjipora. The said decree was carried into effect in the revenue records by attesting mutation No.853 dated 30th September, 1975.
(II) Mutation No.853 dated 30th September, 1975, was challenged by medium of appeal before Additional Deputy Commissioner, Anantnag, by respondents No.6 and 7 (sons of the judgment debtor-Ahad Zargar), in the year 2011, means after a gap of 36 years. Appeal has been decided on 08.12.2012. In the said order Additional Deputy Commissioner, Kulgam, has observed as under :
“impugned mutation bearing No.853 dated 30/09/1975 has been attested on the basis of a civil court decree passed by Munsiff Kulgam on 30/05/1973 while as factually as per material available on file and report submitted by the District record keeper Sadar court Anantnag no such decree has ever been passed or submitted before said office as such decree is not in existence but instead mutating officer with his eyes closed has by passed the law of inheritance and instead has created decree in his own imagination and attest the mutation in favour of respondents by committing fraud therefore mutation order dated 30/09/1975 bearing number 853 attested by Naib-Tehsildar is set aside as being attested illegally and in contravention of prevalent law and standing orders.”
(III) After recording above observations, Tehsildar, Damhal Hanjipora has been directed to attest mutation afresh after conducting de novo enquiry.
(IV) The said order dated 08.12.2012 was challenged by the present petitioner before the Divisional Commissioner, Kashmir. Operative part of the order passed by Divisional Commissioner, Kashmir, reads as under :
“In view of above and in terms of Section 15 of J&K Land Revenue Act, 1996, the appeal is treated as Revision and is dismissed. The order passed by Additional Deputy Commissioner, Kulgam dated 08.12.2012 in File No.41/APP/ADCK/R is upheld. However, the applicant is advised to file a fresh application before the Tehsildar concerned for attestation of mutation afresh in light of the decree dated 30.05.1975 passed by the Court of Munsiff, Kulgam, subject to its verification from the concerned court.”
(V) In compliance whereof, Tehsildar had requested Munsiff (Judicial Magistrate), Kulgam, that the year indicated in the decree passed in favour of Ab. Rashid Bhat needs to be clarified, whether the actual date of decree is 30.05.1973 or 30.05.1975. In response whereof, Sub Judge, Kulgam, has conveyed to the Tehsildar that the relevant file was called from District Record Keeper, Saddar Court, Anantnag, for perusal. From the perusal of the file it is revealed that the case titled Rashid Bhat Vs. Ahad Zargar was instituted before the Court of Munsiff, Kulgam, on 30.05.1975 with regard to land measuring 01 kanal 10 marlas covered under Survey No.1267/315 of Village Boh Tehsil Damhal Hanjipora, a compromise was effected in between the parties to the suit as a result whereof decree in favour of the plaintiff on the same day i.e. 30.05.1975 has been passed.
(VI) After receiving the aforesaid report, Tehsildar has attested mutation No.1412 dated 24.07.2013 in favour of the petitioner (decree holder). Again dissatisfied with this order of mutation, respondents
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