Point of Law: Delay/Laches/Limitation - Mutation entry - Where no limitation is prescribed for invoking the revisional power that will not permit the authorities to exercise the power arbitrarily with inordinate delay.

JUDGMENT :

PANKAJ MITHAL, J.

1. The judgment and order of the writ court dated 16th March 2017 dismissing OWP No. 1302/2013 Abdul Gani Naik vs. Financial Commissioner (Revenue) and others is under challenge in this Letters Patent Appeal.

2. The controversy raised in this appeal is regarding the two mutations entries No. 156 dated 28 Fag (at places wrongly mentioned as Mag) 1996 Bikrami Samvat. (corresponding to the year 1939-40 AD) and to the mutation entry 470 dated 10.08.1999 which is alleged to be of the 10th day of the 8th month of 1999 Bikrami Samvat (corresponding to the year 1941-42) whereas the other side contends that it is of the year 1999 AD of the Georgian Calendar.

3. It may be pertinent to mention here that the dispute with regard to mutation entry No. 156 has concurrently been held to be correct and maintained by all the authorities below as well the Single Judge. Therefore, in the appeal the dispute only remains with regard to the mutation entry No. 470.

4. The sole controversy involved is whether the said entry could have been challenged by way of a revision after more than 70 years if the date of attestation of mutation is taken to be 10.08.1999 Bikrami (which corresponds to 1941-42 AD) or it is within reasonable time from the attestation of the mutation if the date is taken to be 10.08.1999 AD.

5. The sole argument of Mr. M. A. Qayoom, is that the aforesaid mutation No. 470 was attested on 10th day of 8th month of 1999 Bikrami Samvat and not on 10.08.1999 AD and as such the revision against it filed on 01.07.2005 before the Settlement Commissioner under Section 15 of the J&K Land Revenue Act was highly belated and the said mutation could not have been disturbed by filing revision after such a long distance of time.

6. Mr. Azhar-ul-Amin, learned counsel contends that the aforesaid mutation was attested on 10.08.1999 AD and since there is no limitation provided for the revision, it was rightly entertained after 5-6 years of the said entry. The mutation was rightly modified in accordance with the Muslim Personal Law which was applicable to the parties.

7. In view of the short controversy so involved though it is not necessary to go into the factual background but for the sake of clarity and convenience, it is considered appropriate to narrate the factual position also in brief.

8. In essence, the dispute concerning mutation No. 470 relates to the estate left behind one Abdullah who died issueless. He had a brother Qadir and a sister Khurshi. He had one share in 30 Kanals and 5 marlas of land situate at village Natipora whereas the other two shares belonged to his brother Qadir. On his death, his share was mutated in the name of Qadir vide mutation No. 470.

9. One Mushtaq Ahmad Tantray grandson of sister of the deceased Mst. Khurshi filed a revision before the Settlement Commissioner challenging mutation No. 470 of village Natipora contending that according to the Muslim Law her grandmother was entitled to 1/3rd share in the property of the deceased. The Settlement Commissioner vide order dated 10.02.2006, opined that the personal property of the deceased would have devolved in the ration of 2:1 in favour of his brother Qadir and sister Mst. Khurshi respectively. Therefore, mutation No. 470 recording the entire property of the deceased in the name of brother Qadir is not in accordance with the Muslim Law. The Settlement Commissioner in terms of Section 15 (3) of the J&K Land Revenue Act submitted a reference to the Financial Commissioner who accepted the same vide order dated 21.02.2011 holding that as the parties have accepted that the devolution of the estate would be governed by the Muslim Personal Law, both the brother and the sister will get share in the ratio of 2:1.

10. The writ court while examining the mutation No. 470 treated the said attestation to have been made on 10.08.1999 AD and since the revision was filed on 01.07.2005, held that it was filed within 6 years and since there is no limitation provided for fi