Aziz Wani vs Director Consolidation, Srinagar and others

Anant Singh, J.—This is an application for a writ of certiorari by quashing the order of the Director of Consolidation Srinagar, Respondent

No. 1, dated 29-5-1967, upholding in Revision the orders of his subordinate courts. The initial order is dated 20-7-65, made by the Consolidation

Officer, and the second by the Settlement Officer, as the appellate court, dated 6-7-1968.

The impugned orders were made under the provisions of Jammu and Kashmir, Consolidation of Holding Act, 1960 referred to hereafter as the

Act in a litigation between the petitioner, Aziz Wani on one hand, and Mohada, father of Respondents 2 to 5 on the other. Mehada, died during

the pendency of the appeal. The petitioner claims to be the natural son of Mohd. Wani born in lawful wedlock after six months of the marriage of

his parents. He had a sister, Mst. Shah Bibi, born of the same parents. She was married to Mehda Wani the father of Respondents 2 to 5, and his

father, Qadir Wani was the brother of the petitioner's father, Mohamad Wani.

The present dispute relates to the Estate of Mst. Shah Bibi. According to the petitioner, a dispute had arisen between him, and his sister, Mst.

Shah Bibi, after the death of their common father, Mohd. Wani. A compromise was effected in 1993 B.K. in the court of Wazir Wazarat

Baramulla. Mehada acted in that compromise as attorney for his wife, Mst. Shah Bibi. Under the terms of the compromise, one-half of the estate

of Mohd. Wani was to remain with the petitioner, and for the remaining half it was stipulated that Mst. Shah Bibi would hold it for life alone, and

that on her death, the same would revert to the petitioner, if she left no issue of her own. She died issuless nearly 20 years back, when the

petitioner came in possession of her estate and has continued in possession of the same to the exclusion of Respondents 2 to 5, and their father for

over 15 years. They have had no concern with her estate whatsoever.

The village Pattan, where the disputed land is situate, was declared a consolidation area under the Act in 1962. The Consolidation Officer,

started hearing disputes in the matter of Consolidation of Holdings. Mehda Wani, the father of Respondents 2 to 5, and the husband of Mst. Shah

Bibi claimed the estate of Mst. Shah Bibi, as a collateral of her father, Mohd. Wani, alleging that the petitioner was only an adopted son, and not

the natural son of Mohd. Wani, and, therefore, not entitled to succeed to the estate of Mst. Shah Bibi.

The Consolidation Officer has found against the petitioner. His decision was upheld in appeal by the Settlement Officer, and on revision by

Respondent No. 1. The petitioner has filed this writ petition against their decisions challenging their legality on various grounds.

It is urged on behalf of the petitioner that the Consolidation Officer did not consider the evidence adduced on behalf of the parties, but he has

held the petitioner as an adopted, and not the real son of Mohd. Wani as was his case, only on the basis of an order of the then Wazir Wazarat,

Baramulla passed in appeal No. 28 of 2002 as in Exhibit P I, which had only related to the question of mutation in a Revenue proceeding in place

of the petitioner's father. It is said that any order made by a Revenue Court with regard to mutation proceeding cannot decide the question of title,

and, therefore, the doctrine of estoppel was not applicable as has been applied by the Consolidation Officer.

Next it is urged that the petitioner, as a defendant, in the proceeding before the Consolidation Officer, had claimed the estate of Mst. Shah Bibi,

by adverse possession, having been in hostile possession thereof to the exclusion of the Jiather of Respondents 2 to 5, but the Consolidation

Officer did not consider this issue at all.

Next it is contended that before the Consolidation Officer, a plea had been taken on the basis of the presumption arising under the provision of

Section 112 of the Evidence Act, that he was the legitimate son of his father, having been born after six months of the marriage of his parents. But

the learned Consolidation Officer did not consider the applicability of the aforesaid provision of the Evidence Act.

The grounds for challenging the legality of the judgment of the Consolidation Officer seem to be well founded. The Consolidation Officer has

been clothed with the powers of a Civil Court under the Consolidation Act, and he can decide even the question of title as a Civil Court. Any

judgment without the discussion of the evidence led by the parties is no judgment in the eye of law. The Consolidation Officer has not discussed

any evidence adduced by the parties bearing on the issues. He has only relied on the decision of the Wazir Wazarat in his order in appeal No. 28

of 2002 and on this basis alone, he has found the petitioner to be the adopted son of Mohd. Wani. He has held that the petitioner had full

knowledge of the aforesaid order of the Wazir Wazarat, and he did not try to get it set aside. He was, therefore, stopped from challenging that

finding. In this the learned Consolidation Officer was altogether wrong. It is a settled principle of law that any order in mutation proceeding made

by a Revenue Officer can be no decision as to title so as to preclude a party from challenging it. The decisions in Ahsan Dar and Others Vs.

Mohd. Dar, may be referred to in this connection.

The Consolidation Officer has not also considered the question of the applicability of the provision of Sec. 112 of the Evidence Act, nor has he

considered the question of the petitioner's adverse possession.

The Settlement Officer as the court of appeal, however, on the arguments of the learned counsel for the parties, framed four questions for

consideration:

One was whether the petitioner, who was the appellant before him was in adverse possession for the requisite period of 12 years.

The second was, if the petitioner was the real son of Mohd. Wani.

The third was, if under the terms of the compromise arrived at between the parties in the Revenue Court, the estate of Mst. Shah Bibi on her dying

issueless would revert to the petitioner.

The fourth was, if the provision of Section 112 of the Evidence Act was applicable to raise a conclusive presumption of legitimacy in favour of the

petitioner.

The learned Settlement Officer, acting as the first Court of appeal, also has not decided these questions with reference to the evidence

adduced by the parties. He has, only in a summary way, ruled out the applicability of Section 112 of the Evidence Act, on the ground that it does

not apply to the Muslims of Kashmir, who according to him, are governed by their personal law, but he has not indicated, if the personal law of the

Muslim is in any way derogatory to the provision of Section 112 of the Evidence Act.

The learned Settlement Officer, however, has not recorded his own finding as to the effect of the order or the compromise made between the

parties before the Wazir Wazarat.

On the question of adverse possession, he has only enunciated the abstract principle of law that the possession of one co-sharer is the

possession of the other co-sharers and, therefore, the petitioner could not plead adverse possession, but the learned Settlement Officer has not

indicated how the petitioner, and the Respondents father were co-sharers, and in respect of what land. There is nothing on the record to show that

the petitioner, and the respondents father had held any land of Mst. Shah Bibi, as co-sharers. Their ancestors may have had some land as co-

sharers, but this would not mean that they continued to be co-sharers in respect of all their lands. There may have been partition between them.

The petitioner's plea was that on the death of Mst. Shah Bibi, which occurred some 26 years back, he came in exclusive possession of her estate

to the exclusion of the Respondents father and after his death to the exclusion of Respondents 2 to 5. Then even among co-sharers, one co-sharer

can acquire title by adverse possession by ouster, having kept out of possession the other co-sharer for over 12 years by hostile assertion of the

former's possession. This aspect of the matter was not considered at all by the appellate court, and as I have said, the original court did not touch it

at all. Thus the judgment of the appellate court also is not a judgment in the eye of law, as it is based on pure conjectures and surmises without any

consideration of the evidence and the law bearing on the legitimacy of the petitioner.

The judgment of Respondent No. 1, passed in revision as a Director of Consolidation of Holdings also suffers from similar infirmities inasmuch

as it has not taken into account that the judgments of the two lower courts, regarding the petitioner's being an adopted son of Mohd. Wani and not

being his real son, were given without consideration of the evidence brought on the record by the parties. This judgment has also repeated the error

committed by the court of appeal below that ""the possession of one co-owner is considered to be the possession of all the co-owners and they are

considered to be in constructive possession"", since he also has not indicated how, and in respect of what land the petitioner was a co-owner or a

co-sharer with respondents 2 to 5 or their father. As to the effect of the compromise arrived at between the parties on 19-1-1996, in the Revenue

Court according to which the estate of Mst. Shah Bibi, was to revert to the petitioner, respondent No. 1, was, however, right in holding that this

could not create a title in his favour, since the compromise was filed before a Revenue Court, but if should be kept in view that the petitioner was

not claiming the estate of Mst. Shah Bibi by virtue of this compromise. He was claiming it by inheritance as the real son of Mohd. Wani, and by

adverse possession. The compromise has only a limited relevancy, if the petitioner was rightly described in it as the son of Mohd. Wani.

The two moot questions were decided by the trial Court and by the court of appeal below without consideration of the evidence brought by

the parties, and by the appellate court about the applicability of the provision of Section 112 of the Evidence Act, without disclosing any adequate

reasons for the same.

As to the applicability of Section 112 of the Evidence Act, at this stage, I may only indicate without finally committing myself on the point that,

prima facie its applicability is not ruled out to the Muslims of Kashmir as the learned Settlement Officer has held. The Evidence Act being Act No.

XIII of 1977 came into force in this State with effect from 8-4-1925 under notification No. 14-L/81.

The Shri Pratap Jammu and Kashmir Laws Consolidation Act, 1977, came into force under the State Council Resolution No. 1 dated 8th

April 1925 under Notification No. 14-L/82. u/s 4 of this Act, in the matter of succession, inheritance, marriage, bastardy amongst others,

Mohamedan Law in the case of Mohamedans and the Hindu Law in cases where the parties are Hindus will apply ""except in so far as such law

has been, by this or any other enactment, altered or abolished..... which is not contrary to justice, equity or good conscience and has not been by

this or any other enactment altered or abolished and has not been declared to be void by any competent authority"".

It would thus appear that the Evidence Act above referred to, was made applicable to the Mahomedans also of this State.

Section 112 of the Evidence Act raises a conclusive presumption in favour of the legitimacy of a person, if he is born ""during the continuance of

a valid marriage......... unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been

begotten.

In (Syed) Sibt Mohammad Vs. Mohammad Hameed and Others a Division Bench held that Section 112 applied to the Mahomedans also.

In Mulla's Principles of Maho-medan Law, sixtenth Edition, by the Hon'ble Mr. Justice M. Hidayatullah, now, the Chief Justice Supreme

Court, the law on legitimacy among the Mahomedans has been laid down in Chapter XVII. It is mentioned in Sec. 340 under the Heading

presumption of legitimacy under the Mahomedan Law"" that a child born after six months from the date of marriage is presumed to be legitimate,

unless the putative father disclaims the child by Li'an (S. 333).

In the present case, the father of the petitioner does not appear to have disclaimed the petitioner as his son. On the other hand, a document

was filed on behalf of the petitioner before the Consolidation Officer, purporting to be the statement of the petitioner's father Mohd. Wani before

Mufti Azam, wherein Mohd. Wani had acknowledged that a son was born to him six months after his marriage with the mother of the petitioner.

This document was a very important one, and it does not appear to have been considered by the trial court or even by the appellate court.

The petitioner, according to his case was born after six months of the marriage of his parents. The father of the petitioner does not seem to

have repudiated the fact of the petitioner being his son. On the other hand, if the above document contained the statement of Mohd. Wani, this

would go to show an acknowledgment by the father of the legitimacy of the petitioner. There is another document. Record of Register of Birth,

issued by the Civil Surgeon Baramulla, which was filed before the Consolidation Officer, showing therein the petitioner as the son of Mohd. Wani

born on 21-4-1988 BK. The effect of this document also does not appear to have been considered by the Consolidation Officer.

In short as would appear from the foregoing facts, the trial of the case by the Consolidation Officer, and as a matter of that by the two superior

courts was without consideration of all the materials brought on the records, and, therefore, these judgments are not judgments in the eye of law.

The learned counsel appearing for Respondents 2 to 5, however, has contended before me that this court should not interfere in writ

application, since the Consolidation Officer, and the courts of appeal and revision had jurisdiction to decide the case even wrongly and against law.

But the errors of law and the decisions on facts without consideration of evidence are so manifest, leading to the miscarriage of justice that this

court, in my opinion, should step in its writ jurisdiction to prevent the abuse of the powers vested in these authorities.

The following decisions of the Supreme Court are well in point on this question:

(1) Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, which has dealt with several civil

appeals Nos. 668, 669, 670 and 672 of 1957.

(2) Syed Yakoob Vs. K.S. Radhakrishnan and Others,

(3) T. Prem Sagar Vs. The Standard Vacuum Oil Company Madras and Others,

(4) Shauqin Singh and Others Vs. Desa Singh and Others, .

If the findings of any Tribunal either on the question of facts or law or both are perverse, capricious arbitrary or manifestly illegal and are

apparent on the face of the record or are without consideration of proper materials this court in exercise of its writ jurisdiction should interfere.

In the result I would set aside the orders, and the judgments of the Consolidation Officer, the Settlement Officer, and the Director

Consolidation Srinagar. The case is hereby remanded to the Consolidation Officer for a decision according to law. The Consolidation Officer will

give full opportunities to both the parties to prove their documents which they have filed, if they have not been proved already. He will decide the

case after the consideration of all the evidence on the record and the law bearing on it.

There will be no order as to cost.