Advocates:
['M A QAYOOM', 'AZHAR-UL-AMIN', '', 'M A RATHORE', 'N H SHAH', 'G A LONE']

HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

OWP No.1302/2013

Date of Decision: 16.03.2017

Abdul Gani Naik

Vs.

Financial Commissioner (Revenue) & ors.

Coram:-

Hon’ble Mr. Justice Mohammad Yaqoob Mir, Judge

Appearing counsel:-

For the Petitioner(s): Mr. M. A. Qayoom.

For the Respondent(s):

Mr. M. A. Rathore, AAG-for R1 to

R6.

Mr. Azhar-ul-Amin-for R7 to R12.

None for R-13.

i)

Whether to be reported

in Digest/Journal:

YES

ii)

Whether to be reported

in Press/Media:

OPTIONAL

1. Petitioner seeks quashment of the orders i.e.

dated 10.02.2006, passed by Settlement

Commissioner in the revision petition titled

“Mushtaq Ahmad Tantray alias Naik Vs. Abdul Gani

Naik & anr”, order dated 21.02.2011 passed by

Financial Commissioner (Revenue), order dated

04.08.2011 passed on mutation No.19432 and order

dated 24.08.2013 passed by Naib Tehsildar,

Nowgam.

2. In essence, dispute amongst the parties

pertains to the estate left behind by one Abdullah

S/o Nabir Naik, who had died issueless. For

appreciating the controversy in its correct

perspective, the backgroundof the case in the

2

context of genealogy has to be noticed. The

genealogy (pedigree table) of the parties is as

under:

Nabir Naik

Khurshi

Abdullah

Qadir

(Died issueless)

Ali

Rehman

Gh. Nabi

Ab. Gani

(Died issueless)

(Petitioner)

Gh. Rasool

(Proforma respondent-13)

Mushtaq Nazir

Manzoor Yousuf

Tasleema Fayaz

(R-7) (R-8) (R-9) (R-10) (R-11) (Dead)

Ahsan

(R-12)

3. The estate of Nabir Naik (Predecessor-in-

interest) situated in Village Natipora, has been

mutated vide mutation No.156 on 28^th Mag, 1996

(Samvat) (corresponding to 1939-1940 AD) in favour

of Qadir (son) and Mst. Khurshi (daughter) in the

ratio of 2:1. Another son of Nabir Naik, namely,

Abdullah, had died issueless, that is why said

mutation has not been attested in his favour.

4. Abdullah (deceased) and his brother Qadir

(father of the petitioner) had a self-acquired property

comprising of land measuring 39 kanals 05 marlas

situated at Village Natipora in the ratio of two shares

3

to Qadir and one share to Abdullah. The share of

Abdullah was mutated in the name of Qadir vide

mutation No.470 dated 10.08.1999 (AD). Mst.

Khurshi, sister of Abdullah, was excluded which gave

rise to a litigative process.

5. Mushtaq Ahmad Tantray, grandson of Mst.

Khurshi, filed a revision petition titled Mushtaq

Ahmad Tantray Vs. Abdul Gani Naik & anr. before the

Settlement Commissioner challenging both mutation

No.156 and 470 of village Natipora, projecting

therein that Mst. Khurshi was a Khana-nisheen

daughter, therefore, she was entitled to inherit

estate of her father and the estate of her brother

equally with brother Qadir. The Settlement

Commissioner while disposing of revision petition on

10.02.2006, in the concluding part of the order

observed as under:

“There is consensus of the parties

regarding application of Muslim

Personal Law to the case in hand. In

view of the agreement of the parties,

the order on mutation No.156 is not

incorrect because Abdullah had died

issueless at the time of attestation of

mutation No.156. From the perusal of

4

the Record of Rights, it transpires

that Abdullah and Qadir sons of Nabir

Naik had some other landed property

in their own names and it is that

property of Abdullah which has been

mutated only in the name of Qadir,

his brother, vide orders on mutation

No.470. It appears that since the

property was recorded in the name of

Abdullah and Qadir only, therefore,

on the death of Abdu