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CASE NO.: Appeal (civil)  5471 of 2000

PETITIONER: Swarn K. Jain

RESPONDENT: Ravi Mahajan & Ors

DATE OF JUDGMENT: 02/04/2008

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  REPORTABLE

CIVIL APPEAL NO. 5471 OF 2000

Dr. ARIJIT PASAYAT, J.

1.      Challenge in this appeal is to the judgment of a Division  Bench of the J & K High Court reversing the judgment of  learned Single Judge of the High Court.   

2.      Background facts in a nutshell are as follows:

3.      Stand of the defendants who were the appellants before  the High Court was that the plaintiff by his own act and  conduct is estopped from filing the suit in question seeking  possession from the defendants as he had pocketed the entire  sale consideration and was not entitled to claim relief.  It was  also submitted that the cause of action when arose was not  purposefully mentioned by the plaintiff and this omission is  not inadvertent but is willful. Reference was also made to  Section 138 of the J & K Transfer of Property Act, 1977 (1920  AD).  Plaintiff’s advocate contended that the doctrine of part  performance as embodied in the Transfer of Property Act, 1882  (Central Act), does not find mention in the Act and, therefore,  defendants being tress-passers claim of the plaintiff cannot be  defeated.            4.      The High Court referred to three documents i.e. receipts  dated 30.1.1974, 19.11.1973 and 23.3.1974.  While appearing  as PW-1, the plaintiff did not say a word as to how and under  what circumstances the documents were executed.  He also  admitted the execution of the documents and construction of  boundary wall having been done by the defendants.  However,  he feigned ignorance as to when the construction was raised.   The height of the wall and the defendants having access to the  passage were admitted.  In the last line of the statement he  admitted that within one or two years after receipt of the  money he saw the defendants had constructed the boundary  wall.  The Division Bench found that the omission to give  details when the cause of action arose to the plaintiff for  maintaining the suit against the defendants was purposeful  and intentional. Had these facts been specifically pleaded,  defendants would have controverted them. Despite this  omission, defendants pleaded their case and disputed the  claim of the plaintiff.  No replication was filed.  High Court  referred to Section 138 of the J & K Act which reads as

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follows:                  ’"138. Transfer of immovable property after due  registration - (1) No transfer of immovable property except in a  case governed by any special law to the contrary, shall be  valid unless and until it is in writing registered and (the  registration thereof has been completed in accordance  with Sub-section (3) of Section 61 of the Registration act,  1977). (2). No Court shall entertain a suit for pre-emption  in respect of transfer of any such immovable property  unless the transfer complies with the provision of sub- section (l). (3). No person shall take possession of or commence  to build or build on any land in Province of Kashmir  which has been transferred or has been contracted to be  transferred to him unless and until such transfer  becomes valid under the provision of sub-section (1). (4). No person who has obtained a transfer of  immovable property referred to in sub-section (1) shall  apply for and obtain from any Revenue or Settlement  Officer or Court any alteration in any existing entry in  any settlement record of paper, unless such person  produces before such officer or court a duly executed  registered instrument (the registration whereof has been  completed in the manner specified in sub-section (1). And no such officer or court shall alter or cause to  be altered any such entry except upon tide production of  an instrument registered in the aforesaid manner: Provided that nothing in his section applied to a  lease of agricultural land for one year or to a lease of any  other land for a period not exceeding seven years.    Provided also that nothing in sub-sections (3) and  (4) shall be deemed to apply to transfers by will or by any  rule of interstate succession or by the operation of the  law of survivorship."     5.      After referring to sub-section (1) of Section 138 the High  Court found that the transfer has to be in writing and  registration has to be completed in accordance with sub- section (3) of Section 61 of the Registration Act (1977 BK).   Sub-section (3) of Section 138 has no application to the  province of Jammu and it only applies to province of Kashmir.   It was noted that Section 138 (3) bars taking possession,  building etc. only in the province of Kashmir.  This omission  relating to Jammu province has not at all been adverted to by  the learned Single Judge. Plaintiff continued to receive the  payments from the defendants till 23rd March, 1974 as is  evident from Ex.PW-3.           

6.      Stand of the learned counsel for the appellant was that  the suit was filed on 16.9.1982 i.e. 8 years after the alleged  date of execution of agreement. Full consideration was not  paid and till 1976 Rs.5,000/- was not received.  The Division  Bench has not dealt with the full payment aspect as was done  in detail by the learned Single Judge. It was submitted that  the omission to give details of cause of action was not  intentional as held by the Division Bench.       

7.      In response, learned counsel for the respondents  submitted that the learned Single Judge did not refer to  Section 138 of the J & K Act; but the Division Bench has  analysed the legal position in detail and, therefore, no  interference is called for.      

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8.      It was required of the plaintiff to lead as to how the  writing came into existence as regards receipt of money. No  detail about cause of action was mentioned and no date was  also indicated when the construction was made.                                            9.      The only averment of any substance in the plaint read as  follows: "That defendants No.1 also purchased the  adjoining plot of land from the State of Jammu  & Kashmir. After purchasing his plot,  defendant No.1 has constructed his house for  himself in his plot.  When the house of  defendant No.1 was ready for habitation he  started living in the same.  In the process,  however, he encroached upon the plot of land  of the plaintiff and in due course of time  bounded the same by a boundary wall.  He has  since been using it as a courtyard.  Defendant  no.2 to 4 are very close relation of defendant  No.1 and are living with him.  They are also  using the plot of the plaintiff without his  permission.  Though defendants No. 2 to 4 wife  and sons of defendant No.1, yet they are being  arrayed as defendants so as to avoid any plea  by defendant No.1 about their non-joinder.           That the plaintiff objected to the illegal  occupation of the land aforesaid by the  defendants.  He requested the defendants a  number of times to vacate the suit land and  hand it over to the plaintiff.  The defendants,  however, requested the plaintiff to sell the suit  land to the defendant No.2.  The negotiations  for the sale of the suit land, however, did not  materialize.  The illegal occupation by the  defendants over the suit land of the plaintiff,  however is continuing."   

10.     The High Court’s finding, as noted above, does not  suffer from any infirmity.   

11.     The Division Bench has elaborately discussed as to why  it came to the conclusion that the omission regarding cause of  action was deliberate and was not inadvertent omission.  This  was a case where no interference is called for with the well- reasoned order of the Division Bench.     

12.     The appeal is dismissed without any order as to costs.