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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
Javed Iqbal Wani, J.
Mst. Hajra W/o Late Sh. Mohd. Akbar - Petitioner
Vs.
Financial Commissioner (Revenue), J&K Government, Jammu - Respondent
OWP No. 376 of 2019, CM Nos. 1857 of 2019
Decided On : 07-02-2024
Mutation - Property Dispute - Land Revenue Act, 1939 AD - Section 15(3) - Summary of Acts and Sections: Land Revenue Act, 1939 AD, Section 15(3) - The court discussed the attestation of mutation orders, the competence of the officer attesting the mutation, the concept of Khana Nisheen daughter under Muslim Personal Law, and the exercise of revisional power under Section 15 of the Land Revenue Act, 1939 AD.
Fact of the Case:
The petitioner implored for reliefs regarding mutation orders related to a property dispute. The petitioner claimed exclusive ownership of the property based on being a Khana-Nisheen daughter and a Will made by the deceased. The court analyzed the succession of the property, attestation of mutation orders, and challenges made by the parties.
Finding of the Court:
The court found that the attestation of mutation orders and the competence of the attesting officer were crucial. It also found that the concept of Khana Nisheen daughter under Muslim Personal Law and the exercise of revisional power under Section 15 of the Land Revenue Act, 1939 AD were central to the case.
Issues: The issues revolved around the competence of the officer attesting the mutation, the concept of Khana Nisheen daughter under Muslim Personal Law, and the exercise of revisional power under Section 15 of the Land Revenue Act, 1939 AD.
Ratio Decidendi: The court's decision was influenced by the interpretation of the legal provisions related to the attestation of mutation orders, the concept of Khana Nisheen daughter under Muslim Personal Law, and the exercise of revisional power under Section 15 of the Land Revenue Act, 1939 AD.
Final Decision: The petition was dismissed, and the court upheld the orders related to the mutation, emphasizing the importance of the legal provisions discussed.
JUDGMENT :
1. In the instant petition filed under Article 226 of the Constitution of India, the petitioner herein has implored for the following reliefs:
(ii) The judgment and order dated 06.12.2017 passed by respondent no. 2 in file No. 67/Revision/2010-11 titled Mursa Begum Vs. State of J&K and ors whereby the reference for setting aside the above mutation order was made to respondent No. 1 and
(iii) Restraining the respondents No. 4 to 11 from interfering in respect of the land owned and possessed by the petitioner covered by mutation order No. 1645 dated 10.05.1985.
2. The facts under the shade and cover of which the instant petition has been filed by the petitioner herein are as under :
(ii) Said Mst. Azizi, after her death, was survived by two daughters, namely, Mst. Hajra, the petitioner herein and Mst. Mursa, the mother of the private respondents herein. After the death of Mst. Azizi, her aforesaid estate came to be inherited by her above daughters in equal shares and in this regard, mutation No. 1373 dated 27.02.1979 came to be attested.
(iii) Subsequent to the attestation of the mutation no. 1373 (supra), the petitioner herein claimed to be the exclusive owner of the aforesaid estate of Mst. Azizi on the ground that she was a Khana-Nisheen daughter as also on the basis of a Will claimed to have been made by Mst. Azizi in her faovur and consequently on the said ground challenged the mutation No. 1373 before Sub Divisional Magistrate, Ramban, who vide order dated 29.09.1980, set aside the mutation No. 1373 and consequently directed correction of the records while acknowledging the claim of Mst. Hajra, the petitioner herein over the land under estate of her mother.
(iv) Mst. Mursa, the other daughter of Mst. Azizi challenged the order of the Sub Divisional Magistrate, Ramban dated 29.09.1980 before the Divisional Commissioner, Jammu in an appeal which appeal, however, came to be dismissed for non-prosecution on 17.12.1982 whereupon mutation No. 1645 came to be attested in favour of Mst. Hajra, the petitioner herein alone on 10.05.1985 qua the land under estate of her mother on the basis of order of Sub Divisional Magistrate dated 29.09.1980.
(v) The aforesaid mutation No. 1645 dated 10.05.1985, however, came to be challenged by Mst. Mursa before the Divisional Commissioner, Jammu in a revision petition which came to be decided by the Divisional Commissioner, Jammu in terms of order dated 06.12.2017 on the premise that even if Mst. Azizi, the mother of the petitioner herein and the maternal grandmother of the private respondents herein was competent to transfer the land under estate in favour of Mst Hajra, the petitioner herein, she could have transferred only her own share as the land under estate was inherited property and not self acquired property and, therefore, Mst. Azizi could not have deprived Mst. Mursa of her share in the property and that even though Mst. Mursa has challenged the mutation No. 1645 dated 10.05.1985 and did not challenge the order of Sub Divisional Magistrate, Ramban dated 29.09.1980, yet having regard to the facts and circumstances of the case, the matter needs to be remanded to the Tehsildar, Banihal for passing fresh order while setting aside the order dated 29.09.1980 passed by the Sub Divisional Magistrate, Ramban.
(vi) The Divisional Commissioner, Jammu while deciding the said revision petition on 06.12.2017 made a reference in terms of Section 15(3) of the Land Revenue Act, 1939 AD to the Financial Commissioner (R), Jammu for the confirmation of the order consequent to which the Financial Commiss
Complicated inheritance disputes regarding land rights should be resolved through regular civil suits, not summary mutation proceedings, as determined under applicable land laws.
Mutation proceedings - There is no finding recorded either by Appellate Court or by Revisional Court as to who was in actual possession of property in question and therefore liable to pay revenue to ....
An appellate revenue authority, in the interest of justice, may pass consequential directions regarding land mutation to align revenue records with a binding, pre-existing, and unchallenged partition....
The main legal point established in the judgment is that the exercise of revisional jurisdiction must be within a reasonable time, and that mutation does not confer title to the property.
The Revenue Tribunal must ensure compliance with statutory requirements in mutation proceedings, retaining jurisdiction to review such orders despite disputes over title.
The mutation of self-acquired property requires a relinquishment deed and cannot be authorized by revenue authorities without jurisdiction, particularly when delay in appeal is not condoned.
The main legal point established in the judgment is that the Divisional Commissioner acted beyond jurisdiction in entertaining the revision application and passing the impugned orders, as the power o....
The court emphasized the importance of proper exercise of revisional jurisdiction and the need for valid mutations in land disputes.
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