3 Nov 2022 12:45 PM GMT
The Jammu and Kashmir and Ladakh High Court has reiterated that mutation entries are only fiscal in nature and these do not confer any title in respect of the property to which they relate nor do these entries extinguish the right of a party in respect of the said property. The observations were made by a bench comprising Chief Justice Ali Mohammad Magrey and Justice Sanjay Dhar...
The Jammu and Kashmir and Ladakh High Court has reiterated that mutation entries are only fiscal in nature and these do not confer any title in respect of the property to which they relate nor do these entries extinguish the right of a party in respect of the said property.
The observations were made by a bench comprising Chief Justice Ali Mohammad Magrey and Justice Sanjay Dhar while hearing a Letters Patent Appeal against judgement passed by the Writ Court in a writ petition filed by the predecessor-in-interest of the appellants against the respondents.
In the said writ petition, the writ petitioner/appellant had challenged order passed by the Financial Commissioner, whereby orders recorded on ten separate mutations had been set aside. By virtue of the impugned judgment, the Writ Court while upholding the order of the Financial Commissioner had dismissed the writ petition.
The appellant challenged the writ court order by submitting that because there is a civil suit pending between the parties which relates to the land in question, as such, it was not open to the Writ Court to uphold the order of the Financial Commissioner whereby the mutations attested in favour of the writ petitioner were set aside as the controversy could be decided only by the civil court only.
The appellant who happened to be the successors-in-interest of the writ petitioner also submitted that he in fact, paid the sale consideration in respect of the land in question to respondent No.2 though the mode of transfer was nomenclatured as oral gift, as the same was considered as one of the safest modes of transfer of ownership of the land and therefore the observation of the Writ Court that the mutations were attested in violation of the Standing Order 23-A is not in accordance with law.
The facts in the instant matter where that the respondent No.2 had executed an oral gift in respect of various parcels of land in favour of the writ petitioner, regarding which ten separate mutations were attested.
Subsequently respondent No.2 challenged the aforesaid mutations by filing a petition before respondent No.1-Financial Commissioner, on the ground that these mutations are fictitious in nature. An enquiry into the matter was directed by respondent No.1 and Assistant Settlement
Officer, Kashmir, after holding the enquiry, submitted his report. Acting on the aforesaid report, the Financial Commissioner vide order dated 28thMarch, 2005, set aside all the ten mutations. This order was challenged by the predecessor-in-interest of the appellant before the Writ Court.
The Writ Court vide its impugned judgment held that the Financial Commissioner has appreciated the matter in its correct perspective and as the mutations have been attested in derogation of the procedure prescribed under Standing Order 23-A, as such, the same are not sustainable. Accordingly, while upholding the order of the Financial Commissioner, the writ petition has been dismissed.
Dealing with the first contention of the appellants that first contention of the appellants that a civil suit between the parties relating to the land in question is pending before the civil court and, as such, it was not open to the Writ Court to record a finding the bench observed that mutation entries are only fiscal in nature and these do not confer any title in respect of the property to which they relate nor do these entries extinguish right of a party in respect of the said property.
"The title to an immovable property is to be established by the disputants before a civil court and not in mutation proceedings. The mutation is attested only in order to enable the Government to recover revenue from the person in whose favour the same is attested. These entries are always subject to the decree of a civil court of competent jurisdiction", the bench underscored.
Dealing with the other contention of the appellant that nothing in Standing Order 23-A prohibits attestation of mutation on the basis of an oral gift, the bench answered that it is true that in terms of the provisions contained in Standing Order 23-A, mutation can be attested on the basis of a gift which may include even an oral gift but in the instant case, it is the claim of the appellants that the writ petitioner had purchased the land by paying sale consideration to respondent No.2 and the oral gift was made by respondent No.2 only as a cloak.
"In other words, the appellants admit that it was a transaction of sale and not an oral gift. Transfer of immovable property by any mode other than the one recognized by Transfer of Property Act cannot be termed as legal. As per Section 54 of the Transfer of Property Act, transfer of immovable property by sale can be effected only by execution of a registered instrument",said the court.
After getting a firm grip on the factual matrix bench maintained that the mutations attested in favour of the writ petitioner are in violation of Para 104 of Standing Order 23-A and it was for this reason that the Writ Court has observed that the alienation of land in the manner claimed by the writ petition is not permissible in law.
For the foregoing reasons, the bench declined to interfere in the impugned judgment passed by the Writ Court and accordingly dismissed the plea.
Case Title : Mst Mugli Begum & Ors vs Financial Commissioner & Anr.
Citation : 2022 LiveLaw (JKL) 204
Click Here To Read/Download Judgment