Mst. Khati & Ors. Petitioners v. Ali Mohammad Sofi & Anr. S, Jammu and Kashmir High Court, Judgment, Law, casemine.com

Factual and Procedural Background

This opinion arises from a challenge to mutation No. 370, attested on 21 January 1962, concerning the succession of landed property left by Ramzan Sofi in village Arwa, Tehsil Beerwa, District Budgam. The mutation was based on a compromise among the parties, specifically four daughters of the deceased, who agreed to divide the property equally between themselves and other co-sharers. After 31 years, in 1993, the mutation was challenged via a revision petition before the Additional Commissioner, who referred the matter under Section 15(3) of the Land Revenue Act, recommending setting aside the mutation for contravention of Muslim Personal Law. The Financial Commissioner set aside the mutation and remanded the case for enquiry. A review petition was dismissed, leading to a writ petition (OWP No. 386/98). The writ petition was decided in 2014, setting aside the Financial Commissioner's orders. The present appeal challenges that decision.

Legal Issues Presented

Whether the mutation No. 370 attested by the Naib Tehsildar was valid, given the contention that only a Tehsildar is competent to attest disputed mutations under Standing Order 23-A.

Whether the revision petition challenging the mutation was barred by limitation or latches despite no prescribed limitation period under Section 15 of the Land Revenue Act.

Whether the mutation attested based on a compromise among the heirs contravened Muslim Personal Law and was therefore void or voidable.

Whether a mutation order alleged to be void ab initio can be challenged without limitation or latches applying.

Arguments of the Parties

Appellant's Arguments

The mutation was attested by Naib Tehsildar who lacked jurisdiction; disputed mutations must be attested by Tehsildar as per Standing Order 23-A.

The revision petition was hopelessly barred by limitation and no reason was recorded to condone the delay of 31 years.

The mutation was void ab initio for contravening Muslim Personal Law, as the deceased’s nephews had no right to succeed.

The judgment in Mst. Akhtara v. State of J&K supports that limitation is not prescribed for invoking revisional powers, implying that delay should not bar revision.

Respondents' Arguments

The mutation was attested on the same day the parties reached a compromise, with statements of the four daughters recorded, making it an agreed order and not a disputed mutation.

Once attested with party agreement, the mutation could not be said to be without jurisdiction.

Despite no limitation period under Section 15 of the Land Revenue Act, latches apply due to the 31-year delay in challenging the mutation.

The judgment in Village Deru v. State of J&K clarifies that even void or illegal orders must be challenged within the prescribed limitation period.

The mutation order was not challenged for 31 years, and one co-sharer had sold the land, reinforcing the settled nature of the mutation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mst. Zaina v. Financial Commissioner, SLJ 1983 J&K	Mutation order passed by Naib Tehsildar with party agreement is an agreed order not challengeable in revision.	The Court relied on this precedent to hold that the mutation attested with consent of parties could not be challenged as disputed mutation.
Mst. Akhtara v. State of J&K, 2009 (I) S.L.J 20	No prescribed limitation period for invoking revisional powers; latches may not bar revision unless mischief or miscarriage of justice is apparent.	The Court distinguished the facts, holding that in the present case latches do operate due to long delay and settled compromise.
Inhabitants of Village Deru v. State of J&K, LPA No. 149/2013, dated 22.08.2013	Void or illegal orders must be challenged within the limitation period; limitation applies even to void orders.	The Court applied this principle to reject the argument that the mutation order could be challenged without limitation despite being void ab initio.

Precedent

Rule or Principle Cited For

Application by the Court

Mst. Zaina v. Financial Commissioner, SLJ 1983 J&K

Mutation order passed by Naib Tehsildar with party agreement is an agreed order not challengeable in revision.

The Court relied on this precedent to hold that the mutation attested with consent of parties could not be challenged as disputed mutation.

Mst. Akhtara v. State of J&K, 2009 (I) S.L.J 20

No prescribed limitation period for invoking revisional powers; latches may not bar revision unless mischief or miscarriage of justice is apparent.

The Court distinguished the facts, holding that in the present case latches do operate due to long delay and settled compromise.

Inhabitants of Village Deru v. State of J&K, LPA No. 149/2013, dated 22.08.2013

Void or illegal orders must be challenged within the limitation period; limitation applies even to void orders.

The Court applied this principle to reject the argument that the mutation order could be challenged without limitation despite being void ab initio.

Court's Reasoning and Analysis

The Court analyzed the validity of mutation No. 370 by examining the facts that the mutation was attested on the same day the parties, including the four daughters of the deceased, reached a compromise and their statements were recorded. This rendered the mutation an agreed order rather than a disputed one, negating the appellant’s contention that the Naib Tehsildar lacked jurisdiction. The Court further considered the principle that although Section 15 of the Land Revenue Act does not prescribe a limitation period for revision, the doctrine of latches applies due to the 31-year delay in challenging the mutation. The Court relied on precedents to establish that even void or illegal orders must be challenged within a reasonable time, rejecting the appellant’s argument of the mutation being void ab initio without limitation. The Court noted the sale deed executed by one co-sharer post-mutation, reinforcing the settled nature of the mutation. Ultimately, the Court found the Financial Commissioner’s orders setting aside the mutation unsustainable and upheld the Single Judge’s judgment setting aside those orders.

Holding and Implications

The appeal is dismissed.

The Court upheld the validity of mutation No. 370 as an agreed order attested with the consent of the parties and barred by latches due to the long delay in challenging it. The decision affirms that mutations attested on compromise cannot be reopened after decades without compelling reasons, even if questions of Muslim Personal Law arise. The ruling clarifies that despite no statutory limitation on revision under the Land Revenue Act, equitable doctrines like latches apply to prevent stale claims. The Court also emphasized that attestation of mutation serves fiscal record-keeping purposes and does not preclude parties from seeking other civil remedies. No new precedent was established beyond applying settled principles to the facts.

Mst. Khati & Ors. Petitioners v. Ali Mohammad Sofi & Anr. S

JUDGMENT:

1. In terms of judgment dated 13.02.2014, rendered in OWP No. 386/98, the order dated 14.05.2007, passed by Financial Commissioner in revision No. 62 of 1993 and the order dated 23rd June, 1998, passed in review No. 28/1997, have been set aside. Dissatisfied therewith, instant appeal has been preferred, wherein it is projected that the revision petition, as was filed before the Financial Commissioner, was hopelessly barred by limitation, no reason has been recorded for condoning the huge delay. The basic order recorded on mutation dated 21.01.1962 is based on compromise of the parties.

2. On the death of Ramzan Sofi, mutation of succession regarding estate left behind by him was to be attested. The proceedings initiated for attestation of mutation of succession were placed before the Naib Tehsildar concerned. Vis-à-vis landed property left behind by Ramzan Sofi in village Arwa Tehsil Beerwa District Budgam, mutation No. 370 has been attested on 21st January, 1962. The order has been recorded on the said mutation to the effect that the matter may be presented for attestation at Village Arwa on 21 January, 1962. On 21 January, 1962, on spot proceedings were initiated. The parties had divulged they be given time for mutual settlement. Then on the same day i.e 21 January, 1962, again proceedings have been presented before the Naib Tehsildar as the co-sharers and four daughters, of the deceased Ramzan Sofi, namely, Mst. Khatji, Mst. Rahti, Mst. Mehra and Mst. Khati, were stated to have entered into a compromise. The statement of the four daughters of the deceased is shown to have been recorded on the same day separately, wherein they have agreed that they have entered into compromise and in view of the settlement arrived at, the landed property of Ramzan Sofi shall be mutated equally i.e one half in favour of daughters of the deceased and another half in favour of co-sharers. On the basis of said statement, which is available on writ records, mutation has been attested on 21.01.1962

3. In the year 1993, i.e after a gap of 31 years, the said mutation No. 370 has been assailed by medium of revision petition before Additional Commissioner, who, after examining the records, made a reference under Section 15(3) of Land Revenue Act recommending setting aside of the mutation as having been attested in contravention to Muslim Personal Law. The Financial Commissioner accepted the reference and while setting aside mutation No. 370 vide detailed order dated 14.05.1997, remanded case to Assistant Commissioner, Budgam, for de novo enquiry. Dissatisfied therewith, review petition was filed by respondent and others. Same has been dismissed by the Financial Commissioner vide order dated 23 June, 1998.

4. Aggrieved thereof, the respondent preferred writ petition(OWP) No. 386/98, which has been decided vide judgment dated 13.02.2014 Both the orders passed by Financial Commissioner have been set aside. Learned Single Judge while relying on the judgment Mst. Zaina v. Financial Commissioner, reported in SLJ 1983 J&K has in para 5 of the said judgment opined that the order passed on mutation by Naib Tehsildar being agreed order could not be challenged in revision. Furthermore, subsequent to the attestation of mutation, Mehda (one of the co-sharer) executed a sale deed, therefore, there is no question of any further de novo enquiry.

5. Learned counsel for the appellant first contended that mutation No. 370 has been attested by Naib Tehsildar when he was not competent do so. Buttressing the submission, he would submit that a disputed mutation, in view of Standing Order 23-A, is to be attested by Tehsildar. The order passed by Naib Tehsildar was without jurisdiction so was rightly set aside by Financial Commissioner. This submission is controverted by learned counsel for respondents by highlighting that, in fact, proceedings were taken up on 20th January, 1962. Then were taken up on spot i.e in the village concerned on 21 January, 1962 when parties sought time to settle the dispute amicably. Then on the same day they had come again that they have settled the dispute. The statements of daughters of the deceased were separately recorded, based on which mutation was attested.

6. The submission of learned counsel for respondents is supported firstly by the statement of the four daughters of the deceased, then attestation of mutation having been attested in their presence. Once the mutation has been attested with the agreement of the parties, it could not be said to be a disputed mutation and attested without jurisdiction. The contention of learned counsel for the appellant accordingly fails.

7. Next it is projected by the learned counsel for the appellant that the deceased Ramzan Sofi could only be succeeded by his four daughters, his nephews had no right to succeed which is the mandate of law of inheritance under Muslim Personal Law. This contention may have substance but the fact is that the daughters of the deceased have entered into compromise and on the basis of their statements, which have been recorded separately, mutation has been attested. They have not challenged the mutation order for a period of 31 years. No doubt, period of limitation is not prescribed for invoking powers of revision under Section 15 of the Land Revenue Act but, nonetheless, in the given facts and circumstances latches will operate.

8. Learned counsel for the appellant would contend that this Court in the case of Mst. Akhtara v. State of J&K, 2009 (I) S.L.J 20, has held that the limitation is not prescribed for invoking revisional powers. The judgment relied upon is in the backdrop of peculiar features of the said case but in the said judgment it has been held that latches may not stand in the way of exercise of revisional power provided case of mischief or miscarriage of justice is apparent. Here in the present case, parties were present, with their consent mutation has been attested, then they have not challenged the order for 31 years. In the process there may have some more development, more particularly one i.e one of the respondents Mehda has sold the land in pursuance of a sale deed. Therefore, said judgment is on different set of facts, will not help the appellant.

9. Next learned counsel would project that the mutation order was void ab initio, therefore, there is no question of applying the rigour of limitation it is in the same background, learned Financial Commissioner has set aside the mutation order.

10. Opposing the said contention, learned counsel for the respondents relied on the judgment rendered by Division Bench of this Court in LPA No. 149/2013 titled Inhabitants of Village Deru v. State of J&K dated 22.08.2013, wherein a similar submission was made that void or illegal order can be challenged at any time and no period of limitation can be invoked to perpetuate such illegality. The said contention has been repelled by the Court by observing “we are afraid that such an argument is no longer available to the appellant because even a void order needs to be challenged within the period prescribed by the Limitation Act.”

11. In the reported judgment, the mutation order was challenged after a period of 25 years. No explanation was tendered for challenging the mutation after such a long period of 25 years. The orders setting aside mutation were maintained. Now coming to the case in hand. The mutation has been attested on the basis of statement of the daughters of the deceased and for 31 years same has not been challenged, so they are caught by latches, the order passed by Financial Commissioner was unsustainable, therefore, learned Single Judge has rightly set aside both the orders.

12. For the stated reasons, we find no reason so as to interfere with the judgment rendered by the learned Single Judge dated 13.02.2014 It is to be made clear that attestation of mutation of succession is for updating the revenue records and such records are maintained for fiscal purposes. Upholding the order of mutation so attested will not deprive the respondents from having recourse to other remedies including filing of civil suit, as may be available and permissible.

13. The Letters Patent Appeal is found to be without merit, as such, dismissed along with connected CMP.

14. No order as to costs.

Pronounced today on 23.05.2014 in terms of Rule 138(4) of the J&K High Court Rules 1999.

LPA No. 50 of 2014,CMP No. 82 of 2014

Mst. Khati & Ors. Petitioners v. Ali Mohammad Sofi & Anr. S

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mst. Khati & Ors. Petitioners v. Ali Mohammad Sofi & Anr. S

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