The Division Bench of the High Court of Jammu & Kashmir and Ladakh Comprising Justice Rajnesh Oswal and Justice Moksha Khajuria Kazmi while dismissing an Appeal have held that “Fraud vitiates all the proceedings and unravels everything” and that the limitation period for challenging an Act of Fraud would start from the date of discovery of Fraud.

The facts of the case were that in the year 1975, after the death of the estate holder, mutation of inheritance was attested in favour of the daughters of estate holder and his widow. The mutations came to be attested in favour of the appellant in the year 1984 and 1985 in terms of Sections 4 and 8 of the J&K Agrarian Reforms Act. Once the mutation of inheritance was attested in respect of the estate in the year 1975 in favour of the legal heirs of estate holder, there was no occasion for the Revenue Authorities to attest mutations under Sections 4 and 8 of the Agrarian Reforms Act in favour of the Appellant in the year 1984 & 1985. The appellant, who happens to be the husband of respondent No. 2 in whose favour mutation of inheritance was attested, can by no stretch of imagination be termed as a tenant of the land. Moreover, the documents on record clearly show that the land was under the self-cultivation of last estate holder after whose death mutation of inheritance was attested in the year 1975 in favour of his daughters and widow which clearly goes on to show that in Kharif 1971, the crucial date for attesting the mutations in favour of the tenants, the father-in-law of the appellant and father of respondents No. 1 to 3 was owner in possession of the property and the appellant had nothing to do with the land in question at the relevant point of time as such the attestation of mutations in favour of the appellant is clearly an act of fraud.

In the instant Case the Commissioner Agrarian reforms (Additional Deputy Commissioner) had set aside the mutations under Sec 4 & 8 of Agrarian Reforms Act after condoning the delay of 35 years. It was contended by the Appellant that the Commissioner had erred in doing the same at an extremely belated stage when Section 22 of J&K Agrarian Reforms Act 1976 read with rules provide that an Appeal has to be filed within 60 days. It was further contended that the impugned Mutations were attested in the year 1984 & 1985 as such there was delay an laches in challenging the said mutations by the other side. It was also contended that the third party interest had already been created in the property in question and as such the mutations could not have been set aside.

The Ld. Single Bench had dismissed the Writ petition filed by the Petitioner/Aooellant while Observing :

“13. From the foregoing analysis of the law on the subject, it is clear that while exercising writ jurisdiction against the order of an appellate authority, unless it is shown that the procedure adopted by the appellate authority is opposed to principles of natural justice or there is an error of law which is apparent on the face of record, the discretion exercised by the appellate authority in condoning the delay in filing the appeal cannot be interfered with. In the instant case, as already noticed, there were sufficient reasons for the appellate authority to condone the delay in filing the appeal. Thus, even if the impugned mutations were challenged after about three decades, these mutations being a result of fraud and the same having been attested at the back of respondent No.1 who was a minor at the relevant time, the delay in filing the appeal deserved to be condoned. 

14. That takes us to the merits of the impugned order passed by the learned Commissioner. As has been already discussed, the mutations under Section 4 and 8 attested in favour of the petitioner were acts of fraud which could not have been attested in the presence of mutation of inheritance having been attested in favour of respondent No.1, her sisters as well as the widow of the estate holder. Thus, no fault can be found in the impugned order passed by the learned Commissioner whereby mutation Nos. 1080 and 1108 of estate Budgam Batpora have been set aside.” .

The Appellate Court upheld the judgment passed by the Ld. Single Bench while analysing the facts in terms of the record which revealed that the impugned mutations on the face of it were clearly an act of fraud. The court further held that as the fraud has been committed while attesting the impugned mutations as such limitation shall not come in the way of the respondents. Accordingly the Appeal was dismissed.