OWP No. 507 and CMP No. 778/2014. Case: Abdul Aziz Hafiz and Ors. Vs State of JK and Ors.. Jammu and Kashmir High Court

Case Number:OWP No. 507 and CMP No. 778/2014
Party Name:Abdul Aziz Hafiz and Ors. Vs State of JK and Ors.
Counsel:For Appellant: A. Andrabi, Adv. and For Respondents: M.A. Qayoom, Adv.
Judges:Muzaffar Hussain Attar, J.
Issue:Property Law
Judgement Date:August 11, 2015
Court:Jammu and Kashmir High Court
 
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Judgment:

Muzaffar Hussain Attar, J.

  1. One Mst. Rahti, Estate Holder, was married to Wali Mohammad Hafiz who contracted 2nd Marriage with Mst. Fazi. Mst. Rahti begot two daughters and one son namely Mst. Fazi, Mst. Azizi and Ali Mohammad to Wali Mohammad Hafiz, her husband.

  2. The 2nd wife Mst. Fazi begot Abdul Aziz, Abdul Rashid, Mohammad Shafi and Mohammad Latief to Wali Mohammad Hafiz.

  3. Mst. Fazi is respondent No. 4 in this writ petition and children of Wali Mohammad Hafiz by Mst. Fazi are petitioners in this writ petition. Mst. Azizi and Ali Mohammad died issueless. The Property of Mst. Rahti was mutated in the name of Ali Mohammad Hafiz the real brother of respondent No. 4 and in terms of order on mutation No. 134, the Estate of Ali Mohammad S/o. Rahti and brother of respondent No. 4 was mutated in favour of respondent No. 4 and she was given one share excepting Khewat No. 114 and rest of the Estate was mutated in the name of present petitioners. This Mutation order was challenged in Appeal which was dismissed by the Appellate Authority which constrained the respondent No. 4 to challenge the same in Revision petition before the Settlement Commissioner. Settlement Commissioner made three references to Financial Commissioner Revenue, who vide order impugned in this petition accepted the references and set aside the impugned orders and remanded the matter to Tehsildar concerned for attesting of fresh Mutation strictly in accordance with Muslim Law. It is directed that Estate of Rahti as well as Ali and Azizi be mutated in favour of respondent No. 4. It is this order and also the order passed on same date by Financial Commissioner, Revenue on the Revision petition filed by the present petitioners against the orders of Additional Divisional Commissioner dated 21st April, 2011 read with order of Collector, Budgam dated 16th June, 2005 which was also dismissed. These orders are called in question in this petition.

  4. Mr. Arshid Andrabi learned counsel for the petitioners submitted that the orders on Mutation passed in 50's could not be challenged at belated stage in Revision Petition. Learned counsel submitted that the orders of the Financial Commissioner, Revenue is illegal, as he has entertained time barred Revision petition. Learned counsel also submitted that the order on Mutation was consent order and respondent No. 4 had consented to the passing of the said order(s), so no Appeal would lie against the said order in view of the...

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