IMPORTANT POINT
Agreement to Sell – No person shall take possession of 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 by way of registration.

JUDGMENT

MA No.105/1999

The instant Civil 1st Appeal has been preferred by the appellant-Ghulam Mohd. Matoo, who has been substituted by his legal representatives after his death during the pendency of the Appeal, whereby the judgment and decree dated 23.07.1999 (for short ‘impugned judgment/decree’), passed by the learned Additional District Judge Srinagar (for short ‘the trial court’), in terms whereof the suit of the appellant titled ‘Ghulam Mohd. Matoo Vs. Ghulam Rasool Sofi & Ors.’, initially instituted before this Court on 03.05.1984 and later transferred to the trial court on 09.06.1989, was dismissed, is sought to be set aside.

2. For convenience, the parties before this Court as appellant and respondents shall be referred as ‘plaintiff’ and ‘defendants’, as per their status before the trial court.

3. The plaintiff instituted the suit for declaration of agreement to sell dated 19.10.1977 pertaining to the land measuring 05 kanals 06 marlas comprising of survey No. 438 min situated at Gulab Bagh Srinagar, as null and void, ineffective and unenforceable as against the rights of the plaintiff, with the prayer for grant of injunction for restraining the defendants from interfering into the possession of the plaintiff over the suit land. The suit was instituted in this Court on 30.05.1984 which was later transferred to the trial court, where it was registered as Civil Original Suit (COS) No. 29/1989 on 09.06.1989.

4. Shorn of minute details, the plaintiff’s suit was that the agreement to sell was vitiated by fraud and deception and is without consideration; that the plaintiff has not consciously executed any such document with the defendants 2 to 4 nor have these defendants accepted this agreement; that the agreement to sell is not in accordance with law and being invalid from its inception was ineffective and unenforceable as against the rights of the plaintiff; that during the pendency of the suit, the defendants forcibly dispossessed the plaintiff and therefore, through an amendment the prayer of possession of the suit land was sought by the plaintiff for delivery of the possession to him, as he was the absolute owner of the property and the defendants being trespassers had no right to hold the same in their possession.

5. It was claimed that the plaintiff and defendant No.1 had purchased 10 kanals 12 marlas of land comprising of survey no. 438 situated at Gulab Bagh Zakura Tehsil Ganderbal from its original owners in equal shares and that by means of agreement to sell, unlawfully and fraudulently, the entire land was brought into existence by defendant no.1 on 19.10.1977 in favour of the defendants 2 to 4 and same was also attributed to the plaintiff even though the plaintiff had not consciously or willingly executed the said agreement and had not received any consideration for its execution; that notwithstanding the said agreement and the recitals contained therein, the plaintiff remained in possession of his share of land, measuring 5 kanals 6 marlas, falling on the eastern side of survey no. 438, as the plaintiff and defendant no.1 had partitioned the land between them, with a common pathway leading to the share of the plaintiff in the land.

6. It had been asserted that the agreement to sell was never acted upon as the same was invalid and therefore, the defendants 2 to 4 obtained sale deeds from defendant no.1, to the extent of 5 kanals 6 marlas of land which had fallen to his share in the survey number in question; that the sale deed rightly does not make any mention of the agreement to sell as the same, to the knowledge of defendant 2 to 4 was invalid. The defendants 2 to 4 obtained the possession from defendant no.1 to his share of land taking advantage of the sale in their favour, the defendants dispossessed the plaintiff forcibly during the pendency of the suit; that the plaintiff sought amendment in the plaint which was granted on 10.10.1991 making it possible for the plaintiff to seek possession of the land i