ABDUL REHMAN NAJAR Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) Petitioner and respondents 3 to 7 are brothers, Petitioner's mother is the first wife of Abdul Sattar Najar, on whose death his father contracted second marriage and out of wedlock respondents 3 to 7 are born. Petitioner claims that respondents 3 to 7 got the entire property of the father, though, they gifted land measuring 3 Kanals and 10 Marias under Khasra No. 4776/2855, 742. 743, 744 and 746 situated in Estate Anchar Tehsil Srinagar to petitioner. On the basis of this oral gift mutation No. 2555 was entered and ordered in favour of petitioner in revenue records. However his brothers the respondents filed a revision petition before Divisional Commissioner (respondent No. 2) who while accepting petitioner-respondent's case referred it for orders to Financial Commisioiner (respondent No. 1) who vide order dated 29-9-1998 accepted the revision petition and set aside the mutation. Against the order petitioner filed a review before respondent No. 1 which too was rejected on 29-9-1998. Both the orders in revision and review are challenged in the petition on the ground that the revision petition was barred by time and yet it was allowed. The oral gift under Muslim Personal Law is valid and yet mutation was refused on the basis of such oral gift. The Agrarian Reforms Act was not applicable to the case.

(2.) In reply contesting respondents 3 to 7 have raised a dispute with regard to the factum and validity of the oral gift. It is even disputed that the possession has been at all given to petitioner. It is stated that no plea of limitation was ever taken before Divisional Commisioner or Financial Commissioner. The writ involved disputed question of fact. The mutations in this case is not to confer any title. Petitioner has alternate remedy. Heard and perused.

(3.) The initial entery and recording of mutation under No. 2555, by Tehsildar is not denied. The basis of the mutation is stated to be oral gift in favour of the petitioner by contesting respondents. However, the correctness of the mutation entry and factum of gift is denied by the above respondents. In revision mutation has been set aside, as both the forums of Divisional Commissioner and Financial Commissioner, have come to the conclusion that the mutation cannot be sustained on assertion of the oral gift. The contention that the revision has been entertained after limitation, is turned down by the revisional court as also in review by the Financial Commissioner. In fact what is contested is title of petitioner to the land in question based on the oral gift, on the one hand petitioner contends that there has been oral gift and possession has been given to him, whereas on the other hand the alleged doners contesting respondents 3 to 7, assert that no gift, oral or otherwise, has been made of the land and the possession of the land is with these respondents. The entry and mutation is stated to be not based on facts. In such circumstances petitioner has clear alternative remedy before the proper forum to establish title and also possession of the land, if it be so. As disputed questions are raised the matter shall have to be determined on enquiry on evidence. The writ court cannot enter the arena of disputed facts and judicial review is not available in the circumstances as placed before court, in this case. Whether Agrarian Reforms Act has any bearing on the matter is open to be taken a closer look in proper proceedings. After all the mutation enteries are fiscal in nature and in the facts and circumstances of this case, do not confer any title to the parties. In result, the petition is dismissed. Petition dismissed.