JUDGMENT:

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). Plaintiffs 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 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 ha