Ahmad Bhat and Others vs Abdullah Dar and Others

Mohammad Yaqoob Mir, J.—Dissatisfied with the order passed by City Munsiff, Srinagar, dated 24.09.2008, Civil Revision No.

161/2008 was preferred which was allowed vide order dated 28th April, 2009. The said order dated 24.09.2008 was set aside. The respondent

filed review petition No. 32/2009 which was allowed vide order dated 10.06.2014, order dated 28th April, 2009 was recalled whereas revision

petition was converted as petition under Section 104 of the State Constitution, which, as such, is diarized and has come up for final hearing. The

parties have been entangled in the hectic litigation right from the year 1979. To notice the precise factual matrix of the case shall be advantageous

for effectual determination of the controversy involved:

i) The litigation owes its origin to the property i.e., land measuring 11 kanals 11 marlas covered by Survey Nos. 1453/1566 (7 kanals 10 marlas)

and 1742/1475/572 (4 kanals 1 marla) situated in Village Kursoo Padshahibagh, left behind by one Ahad Bhat who on his death was survived by

two widows Mst. Zeba-1, Mst. Zeba-2 and sister Mst. Zaina Bibi. On the death of Ahad Bhat, mutation of succession was attested in favour of

two widows and sister, to the extent of one share each. Later on an appeal was preferred by widow Mst. Zeba-1 against the mutation of

succession before the Collector (Deputy Commissioner) where parties i.e., widow Mst. Zeba-1, widow Mst. Zeba-2 and Mst. Zaina Bibi-sister of

the deceased Ahad Bhat had entered into a compromise, in terms whereof Mst. Zeba-1 was given one share, Mst. Zeba-2 and Mst. Zaina-sister

two shares equally but Mst. Zaina had only life interest and thereafter property would revert back to the collaterals but the compromise was signed

only by Mst. Zaina Bibi and Mst. Zeba-1. Subsequent thereto, Mst. Zaina died issueless and Mst. Zeba-2 got re-married.

ii) Mst. Zeba-1 executed an agreement to sell on 23rd February, 1978 for land measuring 5 kanals and 12 marlas in favour of Ghulam Mohammad

Dar S/o. Nabir Dar and Ghulam Mohammad Mir S/o. Mehda Mir R/O Rambagh against a consideration amount of Rs. 24,000/- out of which Rs.

15200/- were paid at the time of execution, the remaining Rs. 8800/- were to be received later on. The collaterals filed a suit for declaration to the

effect that the parties in the matter of succession are governed by the customary law and as per customary law both the two widows as well as the

sister of the deceased Ahad Bhat were entitled to succeed but their interest in the property was limited i.e., up to their life or till remarriage,

therefore, Mst. Zeba-1 (widow) could not execute the agreement to sell, same may be declared as null and void. To make it more clear as to who

were the plaintiffs and who were the defendants, it shall be apt to quote pedigree table of the parties:

iii) Ghulam Mohammad Dar and Ghulam Mohammad Mir in whose favour Mst. Zeba-1 (widow) had executed the agreement to sell dated 23rd

February, 1978 stand arrayed as defendants 4 and 5 in the above referred suit.

iv) The suit in question has been decreed in ex parte by the Court of 1st Additional Munsiff, Srinagar, on 07.05.1979. Learned Munsiff while

decreeing the suit has held that ""defendant No. 1 and 2 (Mst. Zeba-1 widow and Mst. Zaina sister) are entitled to retain the property till their life

or till marriage they are not entitled to dispose of the same. The defendant No. 3 (Mst. Zeba-2 widow) has already re-married, she is not entitled

to any property"". The alleged agreement dated 23rd February, 1978 executed by defendant No. 1 (Mst. Zeba widow) in favour of defendants 4

and 5 (Ghulam Mohammad Dar & Ghulam Mohammad Mir) regarding the suit property has been declared null and void to the extent of rights of

the plaintiffs.

v) Widow Mst. Zeba-1 after 07.05.1979 i.e., date of decree of suit again has executed an agreement on 15.05.1979 in favour of Mohammad

Abdullah Dar-respondent herein, in terms whereof land measuring 11 kanals and 11 marlas including the decreed land has been agreed to be in

possession of respondent Mohammad Abdullah Dar with effect from the year 1970 and agreed to be sold to him against a consideration amount of

Rs. 43,800/- out of which Rs. 16,000/- are reflected to have been received, for Rs. 18000/- receipt has been issued and Rs. 9000/- were to be

paid up to 21st June, 1979.

vi) Again, Mst. Zeba-1 has executed one more agreement dated 18th June, 1979 where-under it has been agreed that the said land has orally

been sold in the year 1970 to the respondent Mohammad Abdullah, as such, he continues to be in possession thereof as owner. Entire

consideration amount has been received except for Rs. 2000/- which were to be paid in presence of Tehsildar. While authenticating the said

agreement, Mst. Zeba-1 had agreed that she has received the entire amount from the respondent Mohammad Abdullah (prospective owner).

vii) Since the entries in the revenue records were not reflected in the name of respondent Mohammad Abdullah and the Agrarian Reforms Act had

come into force, a way has been devised for conferment of ownership in his favour i.e., on the basis of said agreements, mutation No. 2142 dated

21.06.1979 was attested under the head ""Sehti Kasht"" (correction of entries) where-under respondent Mohammad Abdullah was recorded as

tenant in possession of the said land. Then mutation under Section 4 of the Agrarian Reforms Act bearing No. 2586 dated 19.09.1984 was

attested declaring respondent Mohammad Abdullah as prospective owner. Then on the basis of agreement dated 18.06.1979, authenticated by

the Tehsildar, Chadoora on 25.07.1979, mutation under Section 12 of the Agrarian Reforms Act bearing No. 2593 dated 22.09.1984 was

attested where-under respondent Mohammad Abdullah was conferred the ownership rights over the said land.

viii) All the above referred three mutations were challenged by the collaterals by medium of three separate appeals titled Ali Mohammad & others

v. Mohammad Abdullah & Ors. before Joint Agrarian Reforms Commissioner, Srinagar, which were decided on 09.09.1989. The learned Joint

Agrarian Reforms Commissioner while noticing all the features and facts has observed that Mst. Zeba (widow) is shown to have surrendered her

Kasht"" (cultivation) in favour of Mohammad Abdullah (respondent), then as per agreement dated 28.06.1979, land is shown to have been given

to Mohammad Abdullah on oral sale with possession. Then vide agreement dated 15.05.1979, Mst. Zeba is shown to have received the

consideration amount. Finally, has observed that the land is shown to have been alienated but in view of provisions of Agrarian Reforms Act, a

mode has been adopted, in execution whereof, above referred mutations have been attested. Finally, all the three appeals were accepted and the

orders recorded on these three mutations were set aside.

ix) As against the judgment of Joint Agrarian Reforms Commissioner dated 09.09.1989, a revision has been preferred by respondent Mohammad

Abdullah before revisional authority i.e., J & K Special Tribunal, Srinagar, titled Mohammad Abdullah v. Ali Mohammad & Ors., but without

success as the same has been dismissed on 23rd December, 1992. Again Mohammad Abdullah respondent has invoked the writ jurisdiction of

this court by filing OWP No. 561/1993 seeking quashment of the orders of Agrarian Reforms Commissioner as well as Special Tribunal. Said writ

petition has been dismissed vide judgment dated 26.09.2006. Dissatisfied therewith, respondent Mohammad Abdullah has filed LPA No.

396/2006 which has been dismissed as withdrawn vide order dated 26.07.2007, wherein it has been recorded that after arguing the matter at

great length, Mr. Andrabi, sought permission to withdraw the appeal so that the appellant, if so advised, may seek his remedy before the civil court

of competent jurisdiction.

x) Here is an important aspect i.e., concealment of important fact. The respondent had already filed the suit titled Mohammad Abdullah v. Gh.

Ahmad & Ors., before the Court of City Munsiff, Srinagar, on 2nd June, 2007. Alongside aforesaid suit, an application for grant of interim

injunction has been filed, same had been granted on the same date i.e., 2nd June, 2007 directing the parties to maintain status quo on spot with

regard to suit land. Finally the application for injunction has been disposed of vide detailed order dated 24.09.2008 by learned City Munsiff,

Srinagar. When learned Munsiff passed order dated 24.09.2008, it appears that it was not brought to his notice that LPA No. 396/2006 stand

disposed of on 26.07.2007, otherwise learned Munsiff in the said order would not have recorded as under:

Therefore till the final disposal of aforesaid LPA No. 396/06, it is proper to preserve the suit property in the manner as it existed at the time of

passing ad-interim order.

xi) Any person coming before the Court for grant of equitable relief has to come with clean hands. Why the respondent had concealed the said

important fact, warrants to be taken serious note of. In addition thereto, how City Munsiff could venture to pass such an order when according to

him LPA was pending. It is unbecoming of a judicial officer to say that till the LPA is disposed of, it is proper to preserve the suit property. It is an

act of over-reach, which shows that the officer has been a novice. The moment learned Munsiff had noticed that LPA is pending with regard to

same subject matter between the same parties, first he should have verified the fact, second learned counsel were under obligation to inform him

that LPA already stand disposed of. That apart, he should have waited for the orders of Division Bench in LPA. The City Munsiff has committed a

daring act, unbecoming of an officer. It is this order of the Munsiff dated 24.09.2008 which was challenged by medium of civil Revision No.

161/2008 by Gh. Ahmad & Ors. v. Mohammad Abdullah Dar and set aside.

xii) Respondent Mohammad Abdullah and others had gone unrepresented when the revision petition was decided on 28.04.2009. Subsequently,

respondent Mohammad Abdullah filed a review petition after the prescribed period of limitation. The delay in preferring the review petition was

condoned. However, it was noticed that the revision petition against said order dated 28.04.2009 was not maintainable.

xiii) Confronted with that position, learned counsel for the revisionist submitted that in case review petition is allowed on the ground that the

revision petition was not maintainable, then on recall of the order dated 28.04.2009, the revision petition may be converted as a petition under

Section 104 of the State Constitution. The submission was accepted vide detailed order dated 10.06.2014. RPC No. 32/2009 was allowed,

order dated 28.04.2009 recalled but while noticing the case being an appropriate case warranting invocation of supervisory powers, the revision

petition was converted as petition under Section 104 of the State Constitution, as such, same was heard on 12th June, 2014.

In the backdrop of afore-stated facts and circumstances, learned City Munsiff who has passed the order dated 24.09.2008, is found to have

exceeded the limits. Least said is better. Even otherwise, learned Munsiff has not appreciated the case properly while disposing of the application

for injunction, order, as such, is set aside. The application for injunction shall be heard afresh and after hearing the counsel for the parties

appropriate orders, as shall be warranted, shall be passed.

During the currency of this litigative process/petitions, there have been certain other developments regarding which petitioners (collaterals) have

filed writ petition (OWP) No. 1486/2011, which has been clubbed with this petition, therefore, is also taken up for determination.

Respondent Mohammad Abdullah has filed a review petition on 29.11.2008 before joint Agrarian Reforms Commissioner seeking setting aside

and modification of the order dated 09.09.1989. Same petition has been allowed and the order has been modified to the extent that the name of

Mst. Zeba be read instead of Mst. Zaina. Why Commissioner has done so because in succession mutation Mst. Zaina was given only life interest.

How Agrarian Commissioner would entertain review petition when the order dated 09.09.1989 was confirmed first by revisional authority and

then by the High Court in Writ Petition and in LPA. How Agrarian Commissioner has entertained the review petition is quite disturbing because the

order dated 09.09.1989 had merged in the order passed by Superior Authorities, then the position of Mst. Zeba and Mst. Zaina having only life

interest in the property of the deceased Ahad Bhat or interest till re-marriage has been settled in the decree passed by learned Munsiff on

07.05.1979 which judgment and decree till date has not undergone any change. The Joint Agrarian Reforms Commissioner appears to have been

influenced by misconception. The order is set aside, review petition dismissed.

The proceedings pending before Additional Divisional Commissioner, Kashmir are also sought to be quashed. What has happened is that after

the mutations under Section 4 and 12 of Agrarian Reforms Act were set, which order has been maintained up to LPA stage, the collaterals-

petitioners filed an application before Tehsildar under Section 27 of the Agrarian Reforms Act for restoration of possession of the said land.

Thereafter Tehsildar proceeded further in the matter. Respondent Mohammad Abdullah filed revision petition against the said proceedings before

the Additional Commissioner (Agrarian Reforms Commissioner), Srinagar, as then he was. Since Additional Commissioner in the capacity of

Agrarian Reforms Commissioner had no powers of revision because said power vests only with the Revenue Tribunal, therefore, revision petition

filed before Additional Commissioner was not to be entertained, as such, proceedings pending before the Additional Commissioner (Agrarian

Reforms Commissioner), Srinagar, shall stand quashed with liberty to the respondent Mohammad Abdullah to work out appropriate remedies as

shall be available as against the proceedings initiated under Section 27 of the Agrarian Reforms Act by the Tehsildar.

Order dated 20th October, 2011, passed by City Munsiff, Srinagar, during currency of the suit, is also sought to be quashed. In terms of the

said order, Munsiff has ordered that since the counsel for the defendants having disowned any thumb impression of two ladies depicting names of

Masooda and Nazira who did not figure in the array of defendants having been taken on the power of attorney, has directed the Registry to send

the matter for examination of Forensic Laboratory. In view of the facts reflected, the said order does not warrant any interference.

Again, in the petition it has been prayed that the suit proceedings now pending before the City Munsiff, Srinagar, may be quashed so that the

orders passed in the first round of litigation by the officers/authorities under Agrarian Reforms Act are implemented. This prayer cannot be granted

because suit is pending before City Munsiff, it shall be open for the petitioners to raise all objections, which include maintainability of the suit, lack

of jurisdiction, locus standi and all other grounds as shall be available. Learned City Munsiff shall proceed with the proceedings of the suit strictly in

accordance with the procedure prescribed with promptitude.

While summing up, both the petitions are allowed to the extent indicated above.

Record of trial Court (City Munsiff, Srinagar) along with copy of this order be sent back forthwith where the parties shall appear on 14th July,

2014. Record of the Additional Commissioner, Kashmir and Joint Agrarian Reforms Commissioner, Kashmir, along with copy of this order be

sent back for information.