Jammu & Kashmir High Court - Srinagar Bench

Through: Mr. F. A. Wani vs Union Territory Of J And K And Ors on 7 February, 2025

Author: Javed Iqbal Wani

Bench: Javed Iqbal Wani

                                                                        S. No. 14
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                   AT SRINAGAR

                               WP(C) 1832/2020
                             c/w WP(C) 2302/2022
                                                                      ...Petitioner(s)
CHAIN KUMARI



Through: Mr. F. A. Wani, Advocate.
                                        Vs.
UNION TERRITORY OF J AND K AND ORS                                  ...Respondent(s)

Through: Mr. Hakim Aman Ali, Dy.AG
         Mr. S. N. Ratanpuri, Advocate with
         Ms. Peer Fiza Khurshid, Advocate.
CORAM:
        HON'BLE MR JUSTICE JAVED IQBAL WANI, JUDGE
                             O R D E R (ORAL)

07.02.2025

1. WP(C) 1832/2020

(i) In the instant petition, the petitioner has prayed for the following reliefs: -

a) Writ in the nature of Mandamus to directing and commanding the respondents to provide protection to the life and property of the petitioner situated at Kangan, Ganderbal, Kashmir.

b) With the further prayer directing the respondents to implement the provisions of The Jammu and Kashmir Migrant Immovable Property (preservation, protection and restraint on distress sales) Act, 1997, and preserve the property of the petitioner.

(ii) The facts under the shade and cover of which the aforesaid reliefs have been prayed and as are stated in the petition, are that the petitioner's husband, namely Thoru Ram Sharma, purchased an immovable property consisting of a residential house along with land underneath and appurtenant thereto, measuring 01 kanal 04 marlas falling under survey Nos. 932/560, situated at Estate Kangan from one Mohd Maqbool Beg respondent 7 herein for a sale consideration of Rs.75,000/- and in this connection executed an agreement to sell with said respondent 7 herein on 25th July 1989, while stating further that upon purchase of the said immovable property, the name of the

husband of the petitioner came to be incorporated in relevant revenue records in respect of the said property.

(iii) It is further stated that the husband of the petitioner, after taking over the possession of the said property, started residing therein and conducting business thereof, however, was compelled to migrate there from in the year 1995 on account of outbreak of militancy and killing of one Dr. Gopi Nath of Kangan.

(iv) It is further stated that subsequently the petitioner, upon the death of her husband, came to know that the respondent 7 herein has gifted the property to respondents 8 and 9 herein illegally and deceitfully whereupon the petitioner herein approached the Additional Deputy Commissioner, Ganderbal for retrieving the same and handing over back to her and that in pursuance of a direction passed by the Additional Deputy Commissioner, Ganderbal, the possession of the property came to be handed over to the petitioner, however, the private respondents thereafter started extending threats to the petitioner herein forcing her to take back amount of money paid by her husband against the property.

(v) It is next stated that owing to the said threats extended by the private respondents, the petitioner approached the concerned Police Station for providing her protection, however, the police failed to provide the same compelling petitioner to approach this Court through the medium of instant petition for redressal of her grievances.

(vi) Objections to the petition have been filed by respondent 4, Deputy Commissioner Ganderbal, wherein it is being stated that pursuant to the order passed by this court dated 21st November 2020 in the petition a report came to be sought from the Tehsildar concerned regarding the property in question and in terms of said report dated 6th January 2021, as well as the revenue records attached, therewith revealed that as per the Girdawari of 1990, no land under Survey Nos.

932/560 of Estate Kangan is recorded in the name of Chain Kumari and her husband, namely Thoru Ram Sharma in revenue records, and also that there is no entry in the name of Chain Kumari's husband in the current records stating further therein that as per the revenue record, land measuring 01 kanal under Survey No. 560 min and land measuring 08 marlas under Survey Nos. 1877/972/932/560 and land

measuring 12 marlas under Survey Nos.1878/981/932/560 was obtained by one Mohd Maqbool Beig, S/o Abdul Ahad Beig, R/o Mammer, (respondent 7 herein) from Ghulam Mohammad, Ghulam Nabi, Mohammad Sultan (sons) and Mst Mukhti widow of Ghulam Ahmad Bhat R/o Kangan, by virtue of sale deed and vide mutation Nos. 1021, dated 13th of February 1988, and 1022, dated 13th of February 1988, where after Mohd Maqbool Beg gifted the said land to one Habibullah Sheikh S/o Ghulam Qadir Sheikh vide mutation No.1273 and the said Habibullah Sheikh, S/o Ghulam Qadir gifted the said land to Ghulam Qadir Lone S/o Ghulam Rasool Lone R/o Kangan, but the land is still under the possession of Sons of Habibullah Sheikh, whereas Habibullah Sheikh has given possession of the land on other side of Survey Nos. 56 min to Ghulam Qadir Lone and an entry has been shown under Survey Nos.

1877/972/962/560 and 1878/981/932/560. In the objections, while summarizing the same, it is reiterated that as per the revenue records, there is land recorded neither in the name of Chain Kumari or her husband, namely Thoru Ram, nor any portion of land falls within the purview of J&K Migrant Immovable Property (Preservation, Protection and Restraint of Distress Sales) Act 1997.

2. WP(C) 2302/2022

(i) The present petition has been filed by the petitioners herein on the premise that the land measuring 01kanal under Survey Nos. 932/560 of Estate Kangan, District Ganderbal initially belonged to Ghulam Mohammad, Ghulam Nabi, Muhammad Sultan (sons) and Mst. Mukhti, widow of one Ghulam Ahmad Bhat residents of Kangan, Ganderbal which land was purchased by petitioner No. 5 herein from the said owners by virtue of a registered sale deeds dated 11th of March 1987 and 26th of March 1987, duly registered before the sub- Register, Ganderbal, whereupon the mutations pursuant to the said sale deeds also came to be attested in their favour, being Mutation Nos. 1021 and 1022, dated 13th of February 1988.

(ii) It is also stated that the petitioner 5, however, gifted the said land to the father of the petitioners 1 to 4 herein in terms of oral gift, whereupon a mutation in this regard, being mutation No. 1273, as

well, came to be attested in favour of petitioners 1 to 4 herein, recording the transfer of the land in question in favour of petitioners 1 to 4 herein in terms of said oral gift by petitioner 5.

(iii) It is further stated that the father of the petitioners 1 to 4, upon gifting of the land in question in his favour by respondent 5, possessed, occupied and enjoyed the same, and upon his death the said land vested unto the petitioners and continued to remain in their position without any hindrance.

(iv) It is further stated that, in the year 2020, however, respondent 5 herein filed an appeal against the Mutation No.1273 supra, attested in favour of the father of petitioners 1 to 4 herein, qua the land in question, after a period of 30 years and before any decision could be rendered therein the said appeal on merits respondent 5 herein, however, preferred a writ petition before this court, being WP(C) No.1832/2020 (lead petition), in which writ petition, the petitioner 5 came to be impleaded as party respondent 5 and qua the land in question a claim came to be lodged by the Respondent 5 herein alleging that the land along with her house came to be purchased by her husband from petitioner 5 herein pursuant to an agreement to sell on 25.07.1989.

(v) It is next stated that, in response to the petition, and in compliance to the order passed therein by the court, respondent Deputy Commissioner Ganderbal filed response stating specifically therein, that, as per record available, there is no land recorded either in the name of respondent 5 herein or her husband, namely, Thoru Ram Sharma, and that, as such, the Migrant Act of 1997 is not applicable.

(vi) It is further stated that, sensing passing of adverse orders in the aforesaid petition filed by respondent 5, the respondent 5 chose to file an application before Divisional Commissioner respondent 2 herein for transfer of the appeal filed by respondent 5 against mutation 1273 and respondent 2, without following the procedure prescribed by law in this regard, withdrew the appeal from the Additional Deputy Commissioner Ganderbal and consequently decided the same in terms of order dated 29.11.2021 while treating the appeal as a revision, holding that land in question along with the house has been purchased by the husband of respondent 5, in the year 1989, pursuant to an agreement to sell from its owner Mohd Maqbool Beig, as such, the

mutation No.1273 attested in favour of father of petitioners 1 to 4 herein is not sustainable in the eyes of law and while accepting the said revision petition, referred the same for acceptance to the Financial Commissioner respondent 1 herein, whereupon the respondent 1, in terms of order dated 6th October 2022, accepted the recommendation of the Divisional Commissioner and ordered holding of an enquiry into the matter and initiation of disciplinary proceedings against erring officials who had attested mutation No.1273 in favour of father of petitioner 1 to 4 herein besides ordered that possession of respondent 5 herein over the land shall not be disturbed and also that a mutation shall be attested in favour of respondent 5 for the purpose of updation of record.

(vii) The petitioners herein have challenged the impugned order in the instant petition on the following grounds: -

a. That the appeal could not have been entertained by the Additional Deputy Commissioner Ganderbal which has been filed after more than three decades, that too without any application under the Limitation Act. The respondents had no cause to entertain the appeal as the Respondent No. 5 had no locus to challenge the mutation as she or her husband, was holding no interest in the land in question either prior to or after attestation of mutation no. 1273, therefore, on this count alone, the orders impugned being bad in law, deserve to be quashed and set- aside.

b. That the transfer application was Suo Moto treated as a revision petition for the reasons best known to the Respondent No. 2. The Respondents 1 and 2 being public functionaries, are expected to be guided by the rule of law but in the instant case, the Respondent No. 2 has allowed himself to be guided by the rule of arbitrariness, unreasonableness and bias in an application for transfer of case from Additional Deputy Commissioner, underbal to any other forum. The Respondent No. 2 was bound in law to issue notice to the petitioners herein before passing of any order. There was no cause or occasion neither there is any legal justification in treating an application as a revision and deciding the same in absence of/without notice to the interested parties. Therefore, on this count also, the impugned orders deserve to be quashed and set-aside.

c. That the order impugned dated 06.10.2022 passed by the Respondent No. 1 on the recommendation of Respondent No. 2 goes a step beyond in demonstrating bias and favouritism. Though note of the objections filed Deputy Commissioner, Ganderbal in the writ petition preferred by the Respondent No. 5, has been taken but the Respondent No. 2 in a very casual manner, has passed direction to deliver the possession of the Respondent No. 5, with a further direction that mutation be attested in her favour in regard to the land in question on the basis of a document which is neither registered nor legible. The said agreement to sell mention of which is made in the orders impugned, is a fraud played by the Respondent No. 5 with the only intent of usurping the rights of the petitioners. The Respondents 1 and 2 have failed to take note of the fact that Respondent No. 5 and her husband are not the original residents of Kashmir valley, as no land or any immovable

property was ever registered in their name and as such, could not have been termed as Migrants. There is no record of the Respondent No. 5 or her husband or their family existing with regard to any property in Kashmir which they may have ever owned. The Respondents 1 and 2 failed to take note of these facts as also the well-established judicial principles and went ahead to pass the orders impugned for the reasons best known to them. The appeal filed by the Respondent No. 5 against mutation order No. 1273 deserved a dismissal firstly on the ground of locus and thereafter, on the ground of limitation but the Respondents 1 and 2 have overlooked all these aspects of the matter and as such, have failed to discharge their duties, which they otherwise are bound in law to discharge.

Therefore, on this count also, the orders impugned being bad in law, deserve to be quashed and set-aside.

(viii) Objections to the petition have been filed by officials as well as respondent 5.

(ix) In the Objections filed by official respondents, the same facts and position is being reiterated what has been stated by the Deputy Commissioner Ganderbal, respondent 4 in WP(C) 1832/2020, as such, in order to avoid repetition same is not referred herein.

(x) In the Objections filed by respondent 5, similar stand is being taken in opposition to the instant petition by respondent 5 as has been taken in the connected writ petition being WP(C) 1832/2020, however, additionally, it is being stated in the objections that, in fact, the purchase of property in question by husband of respondent 5 herein from its erstwhile owner, Mohd Maqbool Beig petitioner 5 stands even recorded in Khasra Girdwari of 1990 by the concerned revenue agencies.

Heard counsel for the parties and perused the record.

3. Perusal of the record available on the files suggest that the petitioner in WP(C) No.1832/2020, namely Chain Kumari, in the said petition while seeking the relief, noticed hereinabove has contended that her husband purchased a residential house along with land underneath, and appurtenant thereto measuring 01 kanal from its owner, namely, Mohd Maqbool Beig pursuant to an agreement to sell dated 25th of July, 1989, against a sale consideration of Rs.75,000/- and upon payment of the part consideration of Rs.55,000/- by her husband to the owner of the property, the possession of the property came to be delivered to him and an entry thereof also came to be made in the revenue records. Thus, the foundation of the case of the petitioner qua the property

indisputably is based upon the agreement to sell dated 25th of July, 1989 as also consequent entry made purportedly in the Girdawari of 1990 qua land measuring 01 kanal covered under Survey Nos. 932/560.

4. On the contrary, as per record the petitioners 1 to 4 in WP(C) 2302/2022 supra have contended that their father came to be gifted the land measuring 01 kanal covered under Survey Nos. 932/560 by the donor namely Mohd Maqbool Beig petitioner therein who had purchased the said land from its erstwhile owners pursuant to two sale deeds dated 11th March 1987 and 26 March 1987, on the basis of which sale deeds mutations have had been attested, being mutation Nos. 1021 and 1022 on 13th February 1988 while claiming further, that, upon gifting of the land in question in favour of their father by petitioner 5, through oral gift mutation No.1273, also came to be attested in favour of their father.

Perusal of the record available on file manifestly authenticates the fact that, in terms of sale deeds dated 11th of March 1987 and 26th of March 1987, Mohd Maqbool Beigh have had purchased the land in question from its erstwhile owner/s and had got the said fact of purchase of the land in question also entered into revenue record besides attestation of mutation Nos. 1021 and 1022 dated 13th of February 1988 in this regard.

Record also bears testimony to the fact that the gifting of the land in question by Mohd Maqbool Beigh in favour of father of petitioner 1 to 4 has been recorded validly and legally in terms of provisions of Standing Order 23-A in favour of father of petitioners 1 to 4 and mutation No. 1273 dated 10th May 2016 as well attested in this regard by the competent authority in terms of said Standing Order.

5. The claim of Chain Kumari petitioner in WP(C) 1832/2020 that the land in question was purchased by her husband from Mohd Maqbool Beigh petitioner 5 in WP(C) 2302/2022 pursuant to an agreement to sell cannot be said to have any legal basis in view and in presence of the provision of Transfer of Property Act, SVT, 1977 in operation at that relevant point of time, in that, under Section 54 of the said Act, sale of a tangible immovable property or in the case of a reversion or other intangible thing, can be made only by a registered instrument,

providing further that a contract for the sale of immovable property is contract that a sale of such property or promised shall take place on terms settled between the parties, but no such contract shall be valid unless it is in writing and signed by the parties and that such a contract for sale does not of itself create any interest in or change on such property. Here, it would be significant to refer to the judgment of this court passed in case titled as "Qadir Shah and Ors., v. Amma Dar and Ors.," reported in 1971 JKLR. 268 as also passed in case titled as "Shiv Kumar and others v. Ajudhia Nath and others" reported in 2010, (7) JKJ [HC] 470.

A further reference in this regard to the provisions of Section 138 of the Act of 1977 would be also relevant herein being germane to the controversy which specifically provides that no transfer of immovable property shall be valid unless and until it is in writing registered in accordance with the provisions of Registration Act 1977, providing further that no person shall take possession of or commence to build up or build on any land in the province of Kashmir which has been transferred or has been contracted to transfer to him unless and until such transfer became valid, under the provision of sub Section (1). A reference in this regard to the full bench judgment of this Court passed in case titled as "Ghulam Hussain v. Ghulam Qadir"

reported in AIR. 1978, JKJ 88, would be relevant wherein it has been specifically held that under Section 138 transfer of immovable property without registered instrument does not confer any right or ownership and that in absence of such an instrument mere possessory rights will not mature into ownership rights as in the State of Jammu and Kashmir, neither the principle of Part Performance covered under Section 53-A of Transfer of Property Act 1882 nor the principle of Equitable Estoppel akin to which could be invoked by the party to his aid seeking any relief.

6. Having regard to the aforesaid position of law inasmuch as the facts of the case noticed in the preceding paras, it cannot, but be said that the Chain Kumari petitioner in WP(C) 1832/2020 has lodged legally, factually and misconceived claim over the land in question, based upon the agreement to sell, whereunder the property in question is claimed to have been owned and possessed initially by her husband

and subsequently by her upon death of her husband. Since the very title of the Chain Kumari petitioner over the land in question is not the recognised under law, she cannot be said to have any right recognised under law over the land in question and consequently cannot seek any relief sought in the petition supra in this regard.

7. Having held above that the claim of Chain Kumari petitioner in WP(C) 1832/2020 over the land in question is factually and legally misconceived, the respondent Divisional Commissioner, as well as the Financial Commissioner in terms of impugned orders which are challenged by the petitioner in WP(C) 2302/2022 could not be said to have passed validly and legally. Ironically, respondent Divisional Commissioner in terms of impugned order dated 29 th of November 2021, while treating the appeal filed by Chain Kumari against mutation No. 1273 as revision has misdirected himself and grossly erred in exercise of said Revisional jurisdiction so has also the Financial Commissioner acted mechanically, in colourable exercise and in violation of law, having essentially acted as both civil and revenue court even rendering the sale deeds dated 11th March 1987 and 26 March 1987nullity .

8. For what has been observed, considered and analyzed herein above writ petition being WP(C) No. 1832/2020 titled as "Chain Kumari vs UT of J&K and Ors." is dismissed and writ petition being WP(C) No.2302/2022 titled as "Abdul Rashid Sheikh and Ors Vs. Financial Commissioner and Ors.", is allowed as a consequence whereof the impugned order dated 29.11.2021 in File No.96-TRF passed by the Divisional Commissioner, and order dated 06.10.2022 in File No.77/FC-AP passed by the Financial Commissioner are quashed.