Unregistered Tahrirnama Inadmissible To Prove Transfer Of Immovable Property In Kashmir: J&K&L High Court

The High Court of Jammu & Kashmir and Ladakh has held that an unregistered “Tahrirnama” cannot be relied upon to prove transfer of immovable property situated in Kashmir and that even possession of such property cannot lawfully be taken over unless the transfer is effected through a valid registered instrument.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...

Unregistered Tahrirnama Inadmissible To Prove Transfer Of Immovable Property In Kashmir: J&K&L High Court

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Unregistered Tahrirnama Inadmissible To Prove Transfer Of Immovable Property In Kashmir: J&K&L High Court

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