Excelsior Correspondent
Srinagar, May 20: High Court has ruled that the revenue officer must follow the procedure for title, demarcation and determination of property, if any objection is raised before making any entry in the revenue records and passing any order.
Justice Javed Iqbal Wani said that when a valid application for partition of property is filed, the revenue officer must notify all interested parties before considering the entry in revenue records.
The aggrieved petitioner- Ashok Toshkhani was seeking quashing of order dated 30.09.2022 passed by the District Magistrate, Srinagar, upon an application filed by the other party for demarcation and possession of immovable property comprising of land measuring 4.5 Kanals along with the residential house existing thereon situated at Raj Bagh, Srinagar.
The respondent- namely, Basanti Toshkhani had approached District Magistrate with an application under and in terms of the Migrant Act, stating therein that she, as also the aggrieved- petitioner jointly inherited the property from their mother upon her death, who was owner in part of the property along with one- Kamta Toshkhani W/o Late Badri Nath and that upon the death of her mother, she and her two brothers and one Krishan Toshkhani inherited their deceased mother as their third brother, namely, Brij Krishan Toshkhani had been adopted by their uncle and had also pleaded therein in the said application that in view of her migration from the valley and taking up residence in Jammu, her share in the property remained unattended and, as such, encroached upon by the petitioner- Ashok Toshkhani and, accordingly, sought restoration of her share in the property in terms of the Migrant Act while maintaining the said application.
The petitioner-Toshkhani has questioned the legality of the order dated 30.09.2022 passed by the District Magistrate Srinagar, primarily, on the ground that he had no jurisdiction to pass the same and that no opportunity of being heard was afforded to him to prove his claim, thereby violating the principles of natural justice and that the dispute in question raised Basant Toshkhani before the him does not fall within the ambit of the Migrant Act and also that Section 7(1)(b) of the Migrant Act is unreasonable and unjust, which provides for a remedy of appeal against an order passed under the Migrant Act before the Financial Commissioner, Revenue, as such an appeal could be maintained against an order of eviction only first surrendering the possession of the migrant property.
Justice Wani quashed the order of District Magistrate Srinagar said, if a co-sharer raises a title dispute, the Revenue Officer must either to defer proceedings pending Court adjudication, direct the party to file a civil suit within three months or, inquire into the objection following the civil trial procedure provided under law and if a partition order attains finality, the Revenue officer is empowered to deliver the possession accordingly.
Justice Wani said, the petitioner-Ashok Toshkhani asserts absolute ownership over the property based on a Will claimed to have been executed by the deceased mother in his favour. However, perusal of the impugned order would tend to show that the respondent -District Magistrate has not even adverted to the aforesaid crucial aspect of the alleged Will and has, in fact, acted in a perfunctory manner, in complete disregard of the pleadings of the parties as well as the law applicable to the case.
The court said, the District Magistrate in fact, has entirely overlooked the petitioner’s plea qua the said Will and has instead, proceeded to hold that the parties are co-heirs and co-owners of the property, without addressing or referring to the disputes raised by the Petitioner, challenging the title of his co-sharer over the property.
“The only inescapable conclusion that could be drawn is that the respondent-District Magistrate has acted in the matter without any competence and jurisdiction and proceeded to pass the order dated 30.09.2022. Furthermore, since the impugned order has not been passed under the provisions of the Migrant Act, it would be uncalled for to address to the grounds urged by the petitioner in this regard”, the court concluded.
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