AHMAD Vs. STATE
LAWS(J&K)-2006-3-27
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 10,2006

AHMAD Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) THIS petition impugns a revisional order purporting to have been passed by Financial Commissioner (Revenue) in revision petition captioned as "Mst. Raja and Ors. v. Ama and Ors" over setting mutation No. 329 of village Habak purporting to have been attested by concerned Revenue Officer on 10.4.1958 in favour of on the ground parties were governed by custom according to which the daughters married outside parental house would not get any share from the estate left by father etc. Grounds pleaded are that the order is bad in fact and law and suffers from arbitrariness and lack of appreciation.
(2.) IN their objections the private respondents have inter -alia pleaded that the writ petition impugned Financial Commissioners order on pure factual allegations and as such is not maintainable. Controverting the factual pleas taken, it is further pleaded that parties are strictly governed by Personal Law. During course of their threshold submissions the rival counsel have reiterated the contents of their pleadings.
(3.) I have heard learned counsel and considered the matter. It appears that petitioners and private respondents are brothers and sisters who are locked in a conflict regarding devolution of the estate of their father namely Sona Bhat, with petitioners claiming the matter to be governed by custom whereunder daughters married outside the parental house are not entitled to any share from the estate, and the respondents relying on personal law to claim, a share from the estate as such. After death of their father, however, under mutation No. 329 the estate left was mutated in favour of petitioners to the exclusion of respondents. Aggrieved thereby they challenged the same before Financial Commissioner who vide order dated: 26.3.2003 over set the mutation remanding the matter to Tehsildar, Srinagar for fresh inquiry and orders perusal whereto the said Tehsildar attested a fresh mutation No. 27.7.2003 regarding the estate and besides petitioners mutated it in favour of respondents also to the extent of shares accruing to them under Personal Law. In that circumstantial backdrop, arises the question as to whether or not the petition is maintainable. The central them of the controversy is whether the petitioner is governed by custom or Personal Law in matters pertaining to succession and inheritance, which is a question of fact and can obviously not be determined in writ proceedings, particularly because the controversy is already pending before a competent Civil Court. Legally also, the order passed by Financial Commissioner does not appear to suffer from any infirmity whatsoever whether for want of jurisdiction or otherwise. Mutation attested under Land Revenue Act can be challenged before Divisional Commissioner/Financial Commissioner who in exercise of revisional power vested in them can pass appropriate orders thereupon, so no challenge can be posed against Financial Commissioners order, particularly because it has already been carried into effect by Tehsildar concerned by attesting the fresh mutation aforesaid. This order could perhaps have been challenged by petitioners by way of another revision petition under Land Revenue Act which does not appear to have been done. Instead they have rushed straight to this court with the present writ petition which however, does not appear to be maintainable for the reasons that it involves determination of factual questions; and that remedy is available against Tehsildars aforementioned mutation under Land Revenue Act without exhausting which the present petition cannot be maintained.;


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