GHULAM MOHAMMAD SHAH Vs. GHULAM QADIR RATHER

JUDGEMENT

(1.) The appellant has challenged judgment/order dtd. 27/9/2018 passed by the learned Writ Court in OWP No.27/2015 titled "Gh. Qadir Rather and another vs. Financial Commissioner, Revenue, and others", whereby the writ petition filed by respondents No.1 and 2 has been allowed.

(2.) It appears that respondents No.1 and 2 (hereinafter referred to as the writ petitioners) had filed a writ petition before the learned Single Judge challenging order dtd. 31/12/2014 passed by respondent No.3 herein whereby orders passed on mutation Nos.383 and 608 of Estate Lalpora Tehsil Baramulla were set aside and the case was remanded back to the Tehsildar concerned for passing fresh orders in accordance with Muslim Personal Law.

(3.) The case of the writ petitioners before the Writ Court was that their mother, Mst. Zaina, was married as a Khana Nisheen Dukhter during the life time of her father, namely, Samad. It was averred that immediately after the death of Samad, mutation No.608 with regard to land measuring 11 marlas falling under Khasra No.2059 was attested in the name of Mst. Zaina in the year 1945. Similarly, mutation No.383 of the year 1948 with regard to land measuring 8 kanals 8 marlas falling under Khasra No.2059 was also attested in the name of Mst. Zaina in presence of Mst. Khatji who happened to be the mother of appellant herein. The case of the writ petitioners was that the aforesaid mutations were attested in favour of Mst. Zaina as per the custom and pursuant to the attestation of mutations, name of Mst. Zaina was reflected in the Record of Rights of the year 1960-61. After the death of Mst. Zaina in the year 1990, the property in question devolved upon the writ petitioners and mutation No.1723 dtd. 13/8/1994 was attested in their favour. It was contended by the writ petitioners that after more than 60 years of attestation of aforesaid mutations, the appellant herein filed a belated revision petition before the Financial Commissioner, Revenue, J&K Srinagar, and the said authority without taking into account the fact that the revision petition was highly belated and that at the relevant time according to the custom a Khana Nisheen daughter could inherit property from her father to the exclusion of other legal heirs, allowed the revision petition and set aside the aforesaid mutation orders.