Safiya Malik

The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Vinod Chatterji Koul allowed a civil second appeal arising from a land dispute over a 10-marla parcel, setting aside the first appellate court’s decree and restoring the trial court’s injunction restraining the respondent from interfering with the petitioner’s ownership and cultivating possession. The Court held that a transfer of immovable property in Jammu & Kashmir is not valid unless made through a written instrument and duly registered, with registration completed as required under Section 61(3) of the J&K Registration Act read with Section 138 of the J&K Transfer of Property Act. It further held that, absent such a registered transfer, a transferee cannot lawfully take possession, begin construction, or seek mutation in revenue records.

The dispute arose from a civil suit filed by the petitioner seeking permanent prohibitory and mandatory injunction against alleged interference with land measuring 10 marlas, forming part of a larger khasra number. The petitioner claimed ownership and cultivating possession of the suit land by inheritance, supported by revenue records. The respondent resisted the suit, asserting possession over a larger extent of land under the same khasra number on the basis of an alleged transfer through a decree and contending that the suit land had not been properly specified. Evidence was led by both sides, including oral testimony of parties, relatives, and revenue officials, along with revenue extracts.

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The Trial Court decreed the suit in favour of the petitioner. On appeal, the First Appellate Court reversed the decree and dismissed the suit, accepting the respondent’s claim of possession. The petitioner thereafter preferred a civil second appeal, in which substantial questions of law were framed concerning maintainability of the suit, alleged suppression of material facts, specification of the suit land, and the legality of recognising possession in the absence of a registered instrument under the applicable property law.

The Court examined the issue of alleged suppression and non-specification of the suit land and recorded that “it is not the case of defendant that plaintiff has sold suit land to him and, therefore, there is no question of suppression of material facts.” On the aspect of identification, the Court noted that “plaintiff has given specification of the suit land by mentioning khasra number and location as well,” and that witnesses of both sides were aware of the land in dispute. It further observed that the First Appellate Court’s view to the contrary was “absurd” and showed that it had not properly examined the trial record.

Turning to possession and ownership, the Court recorded that the respondent had failed to produce any document conferring a lawful right over the suit land and that “oral submissions and/or oral statement either of defendant or that of plaintiff will not confer any right in favour of a person.” Referring to the governing statutory provision, the Court stated that “no transfer shall be valid unless such transfer is in writing and registered,” and that “no person shall take possession of any land… unless and until such transfer becomes valid.”

It was observed that recognising possession in favour of the respondent would amount to “vesting ownership rights… qua the property which he has not purchased as per the law.” The Court concluded that the findings of the First Appellate Court on possession were “not sustainable in law” and were contrary to the statutory mandate.

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The Court ordered that “instant appeal is allowed. The impugned judgement and decree dated 24th August 2018 passed by the Principal District Judge, Anantnag… is set-aside. The Trial Court judgement and decree is upheld.” The Registry was directed “to accordingly prepare a decree sheet,” and the matter was ordered to stand disposed of in those terms.

Advocates Representing the Parties

For the Petitioners: Mr. Rizwan ul Zaman, Advocate
For the Respondents: Mr. Gazanfar Ali, Advocate

Case Title: Mst. Khati v. Abdul Rashid Salroo
Case Number: C2A No. 34/2018
Bench: Justice Vinod Chatterji Koul