The Court observed that Section 138 of the Jammu & Kashmir Transfer of Property Act not only mandates registration of transfers relating to immovable property but also prohibits a person from taking possession of land in Kashmir Province on the basis of an unregistered transfer or agreement to transfer.

The Court was hearing a Civil Second Appeal filed by Abdul Aziz Mir challenging concurrent judgments of the Trial Court and the First Appellate Court whereby a decree of permanent prohibitory injunction had been granted in favour of Tariq Ahmad Mir in relation to a patch of land. The appellant claimed that the entire two kanals of land had been transferred in his favour and that possession thereof had already been delivered to him pursuant to a transaction allegedly executed through a document styled as a “Tahrirnama”.

A Bench of Justice Sanjay Dhar observed that Section 138 of the J&K Transfer of Property Act requires every transfer of immovable property to be in writing and registered. The Court further noted that Sub-Section (3) of the provision specifically prohibits a person from taking possession of land situated in Kashmir Province unless the transfer has become legally valid through a registered instrument.

Background:

The genesis of the matter traced to an act of the respondent-plaintiff when he instituted a suit for permanent prohibitory injunction before the Court of Sub Judge, Bandipora, seeking protection of his possession over land measuring 1 Kanal and 10 Marlas. He sought restraint orders against the defendant from interfering with his possession, raising construction over the land or changing its nature and character.

According to the plaintiff, he was the owner in possession of the suit property as reflected in the revenue records. He alleged that although he had earlier sold ten marlas of land to the defendant, the latter was attempting to unlawfully take possession of the entire property and was threatening to alter its nature by raising construction thereon.

The defendant contested the suit and asserted that the entire two kanals of land had been transferred in his favour after payment of full sale consideration. He claimed that possession had also been delivered to him and that he had subsequently fenced the property and constructed a residential house thereon. To substantiate his claim, the defendant relied upon an agreement relating to ten marlas of land and an undated “Tahrirnama” allegedly executed by the plaintiff's father in respect of two kanals of land.

After recording evidence, the Trial Court decreed the suit in favour of the plaintiff and restrained the defendant from interfering with his possession. The decree was affirmed by the Principal District Judge, Bandipora. Challenging the concurrent findings, the defendant approached the High Court through the present second appeal.

Court's Observations:

The Court first examined the legal efficacy of the “Tahrirnama” relied upon by the appellant. It found that the document was undated, written on plain paper, unstamped and unregistered. The Court further noted that the document did not specify the Khasra number of the property allegedly transferred and did not even mention the amount of sale consideration.

Referring to Section 138 of the J&K Transfer of Property Act, the Court observed that transfer of immovable property can become valid only when effected through a written and registered instrument. The Court emphasised that Sub-Section (3) of Section 138 goes a step further and expressly prohibits any person from taking possession of land situated in Kashmir Province on the basis of a transfer or agreement to transfer unless such transfer has become valid in accordance with law. Thus, according to the Court, even possession cannot lawfully pass on the basis of an unregistered document.

The Bench further noted that Section 49 of the Jammu & Kashmir Registration Act renders an unregistered document concerning transfer of immovable property inadmissible in evidence. Consequently, the “Tahrirnama” relied upon by the appellant could neither establish ownership nor prove delivery of possession.

In a significant observation, the Court held,

“... The document D-2 'Tahrirnama' is nothing but a piece of paper, which is inadmissible in evidence and, as such, cannot be taken into consideration for determining the issue as to whether 2 Kanals of land was transferred by father of the plaintiff in favour of the defendant and that possession thereof was delivered to him.”

The Court further observed that the plaintiff had produced revenue records and examined the concerned Patwari, who confirmed that the suit land stood recorded in the plaintiff's name and that he was shown in possession thereof.

Referring to Section 31 of the J&K Land Revenue Act, the Court reiterated that entries in revenue records carry a statutory presumption of correctness. Once the plaintiff's possession stood reflected in official records, the burden shifted upon the defendant to rebut that presumption through reliable evidence.

According to the Court, the appellant failed to discharge that burden. The oral evidence produced by him suffered from material contradictions regarding the amount of consideration allegedly paid, the person who received the consideration and the period during which the appellant was said to have remained in possession of the property. These inconsistencies substantially weakened the defence case.

The Court also found the appellant's version inherently improbable. It noted that the plaintiff admittedly owned only two kanals of land under the relevant Khasra number and had already transferred ten marlas thereof to the appellant. In such circumstances, the alleged transfer of the entire two kanals through an informal and legally unenforceable “Tahrirnama” appeared doubtful.

The Court further observed that even according to the appellant's own case, the transaction had been entered into with the plaintiff's father, who admittedly had no title over the property and therefore could not legally transfer it.

In view of these findings the Court found no infirmity in the concurrent findings recorded by the Trial Court and the First Appellate Court. The Court also concluded that no substantial question of law arose for determination under Section 100 CPC. Accordingly, the Civil Second Appeal was dismissed and the decree of permanent prohibitory injunction granted in favour of the plaintiff was upheld.

Case Title: Abdul Aziz Mir v. Tariq Ahmad Mir

Citation: 2026 LiveLaw (JKL)

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