JANI Vs. HABIB TANTRY

JUDGEMENT

(1.) THIS writ petition arises out of a dispute between the parties as regards the landed property left behind by one, Rajab Tantary, deceased. Upon the death of Rajab Tantary his landed property was mutated in the name of his widow, Mst. Azizi and his two daughters, Mst Fazli & Mst. Jani. In course of time both Mst. Azizi and Mst. Fazli also died and their shares too were mutated in the name of Mst. Jani Thus Mst. Jani came into the possession of entire landed property left behind by Rajab Tantery. She gifted away one half share to one. Gulam Dar. Several years after, in the years 1967, Habib Tantery, respondent here, filed a suit for possession against Mst Jani and Gulam Dar, petitioner here, in the court of Sub Judge Sopore on the ground that he had a preferential right to succeed to the property of Rajab Tantery. The trial court dismissed the suit. The plaintiff filed an appeal before the District Judge Baramulla. While the appeal was still pending, the area, where the land was situate, was brought under consolidation under the Consolidation of Holding Act, 1962 (hereinafter called the ËœActâ„¢). The parries applied to the District Judge praying that the appeal be sent to the consolidation authorities for disposal as required by section 5 of the Act. By his order dated 9 -5 -1972 the learned District Judge allowed the applications and directed that file of the trial court be sent to Tehsildar Consolidation Baramulla for necessary action. The Tehsildar Consolidation made a reference to the settlement officer Consolidation and sought his guidance on the question whether he should deal with the case as court of first instance or as an appellate court. Observing that the appeal had been finally disposed of by the District Judge and no issue was left to be decided by the consolidation authorities, the Settlement officer Consolidation directed that the case be treated as closed. Aggrieved by this order Habib Tantery went in revision before the Financial Commissioner. The Financial Commissioner accepted the revision and sent the case back to the Tehsildar Consolidation with the direction that he shall dispose of the case treating the pleas raised in the appeal before the District Judge as objections under section 8 of the Consolidation of Holdings Act. The present writ is directed against this order.

(2.) SECTION 5 (b) of the Consolidation Act provided that all proceedings for correction of record and all suits for declaration of rights or interest in land both, propriety or tenancy or for possession of land or for partition pending before any authority or court, whether of first instance, appeal, reference or revision, shall stand transferred to the consolidation authorities for disposal as and in accordance with the provisions of the Act and rules made thereunder. Alongside the Act provided hierarchy for the disposal of matters arising under it. The Act as originally, enacted, contemplated that matters arising under it shall be triable by the Consolidation Tehsildar against whose order an appeal could lie before the Settlement Officer consolidation while the powers of revision were vested in the Director of Consolidation who was at the apex in the hierarchy. Subsequently the scheme was changed and the powers of revision were given to the Financial Commissioner while Director of Consolidation was given powers akin to the powers of the second appellate court. As such, by virtue of Section 5 (b) of the Act, any matter pending before a Civil Court to which the Act applied, stood transferred to the file of Consolidation Officer Settlement Officer Consolidation, Director Consolidation and Financial Commissioner according as it -was suit, first appeal, second appeal or a revision petition. That being so, the District Judge Baramulla should have forwarded the appeal pending before him for disposal to the Settlement officer Consolidation and also sent the record of the trial court with it. The Settlement Officer Consolidation could hear and dispose of the appeal as if the judgment and decree made by Sub Judge Sopore was a judgment and order made by the Consolidation Officer subordinate to him. The learned District Judge could not perhaps appreciate the legal position correctly and while allowing the request of the parties that the appeal be transferred to the Consolidation authority concerned directed that the trial court file be sent to the Consolidation Tehsildar. The true position could not also be, appreciated and determined at their level by the consolidation authorities including the learned Financial Commissioner who has made a clean sweep of the trial held by Sub Judge Sopore and allowed the case to be tried abinitio by the Consolidation Officer. The order is clearly erroneous and untenable in law and must be set aside -

(3.) I , therefore, accept this writ petition set aside the order of the Financial Commissioner and direct that the appeal shall be heard and disposed of by the Settlement Officer, Consolidation as if it was an appeal against the judgment and order of a consolidation officer subordinate to him under the Act. The appeal file as also the trial court file of Sub Judge Sopore shall be immediately forwarded to the Settlement Officer Consolidation concerned.