S. 138 J&K Transfer Of Property Act | Transferee Cannot Take Possession Or Seek Mutation Without Registered Instrument: High Court

The Court further ruled that under Section 138(3) of the Act, a transferee cannot lawfully take possession of land, commence construction, or even apply for mutation in revenue records unless such transfer is completed through a registered instrument in conformity with subsection (1) of Section 138.

These observations were made by Justice Vinod Chatterji Koul while allowing a Civil Second Appeal filed by one Mst. Khati. The appellant sought to set aside the judgment of the Principal District Judge, Anantnag, and restore the decree passed by the Trial Court in her favour.

Background

The dispute arose from a civil suit filed by Mst. Khati before the Sub Judge, Bijbehara, seeking permanent prohibitory and mandatory injunction against Abdul Rashid Salroo in respect of land situated at village Jablipora, Tehsil Bijbehara, District Anantnag.

The plaintiff asserted that she, along with her two daughters, had inherited the land from her deceased husband and that the defendant was unlawfully interfering with her ownership and cultivating possession. The defendant, on the other hand, claimed possession over a larger extent of land under the same khasra number on the basis of an alleged transfer through a decree, asserting that the daughters of the plaintiff had sold the land to him.

While the Trial Court decreed the suit in favour of the plaintiff, restraining the defendant from interference, the First Appellate Court reversed the decree, holding that the plaintiff had failed to specify the suit land and that the defendant was in possession. Aggrieved, the plaintiff approached the High Court.

Advocate Rizwan-ul-Zaman, appearing for the appellant–plaintiff, contended that the defendant had failed to produce any registered sale deed or lawful instrument evidencing transfer of the plaintiff's share.

It was argued that even as per the defendant's own admission, only the daughters had allegedly sold their shares and that the plaintiff had never executed any document in favour of the defendant. He submitted that under the J&K Transfer of Property Act, possession must follow lawful ownership and that any possession without a registered instrument was nothing but trespass.

Advocate Gazanfar Ali, representing the respondent–defendant, argued that the plaintiff was not in possession of the suit land and that the evidence on record, including statements of revenue officials, indicated that the defendant was in cultivation of the suit land.

It was contended that the plaintiff's title was under a cloud, that she ought to have sought a declaration, and that the Trial Court had wrongly cast the burden of proof on the defendant.

Courts Observations

Justice Koul first examined whether the suit was liable to be dismissed for alleged suppression of material facts and non-specification of the suit land. The Court found that the plaintiff had clearly mentioned the khasra number, area, and location of the land and that both parties were fully aware of the identity of the suit property.

Criticising the approach of the First Appellate Court in this regard the High Court observed,

"… It is not known how 1st Appellate Court has viewed that there is no specification given about suit land when plaint as well as statement of witnesses adduced by both the parties disclose clear picture and specification of suit land. It appears that 1st Appellate Court has not gone through the Trial Court record while passing impugned judgement and without proper appreciation of facts and circumstances of the case has passed judgement impugned".

Turning to the core issue, the High Court dealt extensively with Section 138 of the J&K Transfer of Property Act, holding that the provision leaves no room for ambiguity. The Court underscored that oral claims, implied consent, or mere possession cannot confer any legal right in the absence of a duly executed and registered instrument.

The Court specifically highlighted Section 138(3), which enjoins that "no person shall take possession of any land in the Province of Kashmir" unless the transfer becomes valid by registration under sub-section (1).

Furthermore, Section 138(4) prohibits any court or revenue officer from altering entries in settlement records without the production of such a registered instrument. Justice Koul noted that the defendant failed to produce any document required under Section 138 to demonstrate his right.

The Court observed that the First Appellate Court, by vesting ownership and possessory rights in the defendant absent registered documents, had "showered the benefit of what provisions of Section 138 of the Act prohibit".

Setting aside the appellate court's finding on possession, Justice Koul held: "...the finding of 1st Appellate court that defendant is in possession of suit land is not sustainable in law and is hereby set at naught being derogatory to provisions of Section 138 of the Act."

In order to fortify its reasoning, the bench referred to the ruling in Sher-iKashmir National Medical Institute Trust v. State, 2005 SLJ 282, and noted:

“There cannot be a valid transfer of immovable property unless and until it is in writing and registered in accordance with Section 61(3) of the J&K Registration Act, and the transferee cannot take possession of the land unless and until transfer is in writing and duly registered and even, he cannot apply for mutation in the revenue record.”

The Court reiterated that mere possession, howsoever long, cannot mature into ownership in the absence of compliance with statutory requirements. Relying upon earlier precedents of the High Court, Justice Koul observed that transfer of immovable property without a registered instrument is invalid and confers no enforceable right.

Allowing the appeal, the High Court set aside the judgment and decree of the First Appellate Court and restored the Trial Court's decree granting injunction in favour of the plaintiff.

Case Title: Mst Khati Vs Abdul Rashid Salroo

Citation: 2026 LiveLaw (JKL)

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