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2017 Supreme(J&K) 876
BEFORE J&K SPECIAL TRIBUNAL JAMMU
KOSSAR AHMAD QURESHI, J. (MEMBER)
Khaliq Ganie - Appellant
Versus
Riyaz Ahmad and Ors. - Respondents
File No. STS/3904/2014
Decided On : 30-06-2017
The main legal point established in the judgment is the exclusive jurisdiction of the Civil Court of Competent Jurisdiction to declare adoption and confer status, the inadmissibility of unregistered will deeds under Muslim law after the Shariat (Application) Act of 2007, and the requirement for evidence and adherence to legal procedures in appellate orders.
Headnote:
Agrarian Reforms Act - Land Tenancy - Section 4, Section 12, Section 21(2), Section 28, Section 67 - The court discussed the implications of the Agrarian Reforms Act, particularly the rights and liabilities of prospective owners under Section 28, the jurisdiction of the ADC under Section 21(2), and the validity of mutation under Section 12. The court emphasized that the revenue authorities have no jurisdiction to declare adoption or confer status, and only a Civil Court of Competent Jurisdiction can do so. The court also highlighted the illegality of conferring adoption status based on unregistered will deeds and the inadmissibility of such deeds under Muslim law after the Shariat (Application) Act of 2007.
Fact of the Case:
The petitioner's father was a tenant of land under an impugned mutation. After his death, the legal heirs inherited prospective ownership rights and entered into a private agreement with the ex-owner of the land. The respondents filed an appeal against the mutation, leading to a series of legal disputes regarding adoption, jurisdiction of the ADC, and the validity of the mutation.
Finding of the Court:
The court found that the impugned order of the ADC declaring the respondent as the adopted son was without jurisdiction and illegal. The court also held that the mutation attested on the basis of a registered document cannot be set aside by the ADC and emphasized the need for evidence and adherence to legal procedures in the appellate order.
Issues: The issues included the jurisdiction of the ADC to declare adoption, the validity of unregistered will deeds, the implications of the Shariat (Application) Act of 2007, and the legality of the appellate order based on evidence and procedural requirements.
Ratio Decidendi: The court's decision was based on the lack of jurisdiction of the ADC to declare adoption, the inadmissibility of unregistered will deeds, and the need for evidence and legal procedures in appellate orders.
Final Decision: The revision petition was accepted, and the impugned order of the ADC was quashed.
KOSSAR AHMAD QURESHI, J. (MEMBER)
1. This revision was filed against the order passed by Commissioner Agrarian Reforms/ADC, Shopian on 29.01.2014. The brief facts giving rise to the instant revision petition are that the father of petitioner Mohammad Ganie all along his life has been tenant of land under impugned mutation. He has been in cultivating possession of this land as tenant thereof in Kharif 1971. After implementation of Agrarian Reforms Act prospective ownership rights were conferred upon Mohammad Ganie by virtue of Section 4 Mutation No. 388 dated 24.12.1986. Mohammad Ganie has died in year 1993 before full ownership rights could be vested in his favour and this position is admitted by the parties and there is no dispute regarding the same.
2. That after death of Mohammad Ganie his legal heirs including petitioner inherited the prospective ownership rights of Mohammad Ganie as per section 28 of Agrarian Reforms Act read with section 67 of Tenancy Act. The legal heirs of deceased Mohammad Ganie entered into a private agreement in terms of section 12 of Agrarian Reforms Act, with ex-owner of the land. This Agreement was registered by Tehsildar in the capacity of being Sub-Registrar for the purpose on 22.10.2003. That on the basis of this Private Agreement Mutation No. 558 under section 12 was attested on 30.01.2004.
3. The respondents No. 1 filed appeal against the mutation No. 558 and the appeal stand accepted by the ADC Shopian on 29.01.2014 which is impugned. The petitioner being aggrieved of the impugned order, challenged the same before this Tribunal on various grounds mentioned in the memo of appeal.
4. The respondent No. 1 has submitted that the revision petition has filed by the petitioner has died its legal death due to the death of revisionist Khaliq Ganie, who has died issueless. The self-styled adopted son Mohammad Ganie has sought substitution of the deceased revisionist in the capacity of adopted son on the basis of Sham deeds, adoption deed dated 04.03.2004, family settlement deed dated 25.06.2005 and declaration deed dated 24.02.2015. The execution of three deeds in regard to the alleged adoption of Mohammad Ashraf Rather by Khaliq Ganie itself provide sufficient ground to suspect their validity as well as legality. All the three deeds on the basis of which Mohammad Ashraf Rather has sought substitution as legal representative of deceased Khaliq Ganie have been put to challenge by Abdul Rehman Ganie, brother of Khaliq Ganie. That because of Shariat Act 2007, the self-styled adopted son of Mohammad Ganie could not succeed to the demised estate of Mohammad Ganie.
5. The respondent No. 4 cannot take refuge under section 21(2) to the effect that the Revisional authority can suo-moto exercise revision powers as revision petition filed by the Khaliq Ganie is also not maintainable in view of the facts, that respondent No. 4 had not joined Khaliq Ganie as petitioner.
6. The Learned counsel for the respondents further submitted that revision petition under section 21 of Agrarian reforms Act is maintainable only when a final order has been passed by the Commissioner and a question of law in the case or public interest is involved in the case. An order sought to be revised has to pass two legal tests, one it must be final order, 2nd it must involve a question of law or public interest. The order impugned in the revision petition is not a final order on the face of it. The ADC Shopian (Commissioner) has remanded the case to Tehsildar, Shopian with a direction to pass fresh orders after visiting the spot in presence of the concerned parties.
7. Counsel for the respondent No. 3, 5 and 6 has submitted that after the death of Mohammad Ganie his legal heirs are entitled to the same status by the operation of the rules of succession as the law is clear in this behalf as narrated in section 28 of the Agrarian reforms Act which deals with rights and liabilities of prospective owner. Further submitted that order impugne
