AHAD SHEIKH Vs. MURAD AHMAD SHAH & ORS.

JUDGEMENT

(1.) The respondent in the writ petition is the appellant. The challenge is to the order of the learned Single Judge, dated 26-11-2009 passed in WP no. 448/1999.

(2.) The issue pertains to the right of ownership of the parties herein pertaining to the land measuring 8 kanal and 14 Maria under survey nos. 501/min, 310/min, 1109/min, 1110, 1679, 1670, 1671 and 3047 min situated in village Kunich Tehsil Bandipora. The said land originally belonged to one Ahmad Mir, who died intestate leaving behind two wives and an adopted son namely the appellant herein. The names of both the wives are the same, namely, Taja. It is common ground that appellant was adopted by late Ahmad Mir as his son. The said Ahmad Mir died on 29-01-1976. After his death the appellant and the two widows equally shared the properties left by late Ahmad Mir by mutual consent. Subsequently, one of the wives died and after her death the appellant and the other widow shared the properties left behind by the deceased widow in equal shares again by mutual consent which was mutated by mutation dated 04-06-1984. Subsequently the 2nd widow also died in the year 1996. After her death her share of property was also mutated in favour of the appellant by mutation dated 27-07-1996. The said mutation was corrected by the Tehsildar Agrarian Reforms Bandipora in favour of the respondent. Aggrieved against the same, the appellant approached the Land Com missioner, Agrarian Reforms Baramulla. His appeal was dismissed by order dated 03-12-1997. The appellant preferred a revision against the order of the Commis sioner Agrarian Reforms Baramulla before the Jammu and Kashmir Special Tribu nal under Section 21 of the Jammu and Kashmir Agrarian Reforms Act read with Section 23 of the J&K Special Tribunal Act. By order dated 30-07-1999 in File no. STS/2914/98 the Tribunal set aside the order of the Commissioner dated 03-12-1997 as well as the order of Tehsildar Bandipora dated 07-02-1996 and remitted the matter back to the Tehsildar with a direction to attest the mutation of inheritance in respect of land in dispute measuring 8 Kanal and 14 Maria situated in village Kunich, Tehsildar Bandipora in favour of the appellant. Aggrieved against the same the respondent preferred the writ petition. The writ petition having been allowed, the appellant has come forward with this appeal.

(3.) Mr. S.T. Hussain, learned senior counsel appearing for the respondents raised two preliminary objections to this appeal. The first objection related to the maintenance of this appeal under Clause 12 of the Letters Patent on the ground that the writ of certiorari and the revision under Section 115 of the CPC have the same complexion and, therefore, when the writ petition was an extension of superintend ing power of the Court over its subordinate Tribunal, a further appeal under Clause 12 was not maintainable. The other preliminary objection raised by the learned senior counsel was on the very status of the appellant to claim any right in the landed properties based on the fact that he was adopted son of late Ahmad Mir and by virtue of the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007, Act no. IV of 2007, no Muslim can claim any right in his capacity as an adopted son. In other words, having regard to the coming into force of Act no. IV of 2007 all such rights which were in vogue under the provisions of the Shri Partap Jammu and Kashmir Laws Consolidation Act, Samvat 1977 stood repealed which were, inconsistent with the provisions of the Act IV of 2007 as well as by virtue of Section 2 of the Act no. IV of 2007, and the question regarding intestate succession, special property of females including personal property inherited etc, where the parties are Muslims, would be governed by the Muslim Personal Law (Shariat) Act, notwithstanding any customs or usages to the contrary. Learned senior counsel would therefore contend that once the said Act was introduced the appellant had no right in law to claim any benefits on the basis of his so-called status as an adopted son of late Ahmad Mir. The learned counsel placed reliance upon a decision of the Hon'ble Supreme Court, C. Mohammad Yunus v. Syed Unissa and others, 1962 1 SCR 67 in support of his above submissions.