Gh. Mohd. Matoo vs Gh. Rasool Sofi and Others

Hakim Imtiyaz Hussain, J.—This Civil First Appeal has been filed by one Gh. Mohd. Matoo S/o Gh. Qadir Matoo R/o Qamarwari,

Srinagar against the ex-parte judgment and decree passed by Ld. Additional District Judge, Srinagar on 23.7.1999 in a case titled Gh. Mohd.

Matoo v. Gh. Rasool Soft and Ors. COS 29 / N of 1984 by means of which the court has dismissed the suit of the Appellant-plaintiff Gh. Mohd.

Matoo.

The dispute between the parties is on a piece of land measuring 5 Kanals and 6 marlas of land situated under survey No. 438 Khewat No. 9 at

Gulab bagh, Zakura Tehsil Ganderbal. Appellant-plaintiffs case before the trial court was that he and respondent-defendant No. 1 namely Gh.

Rasool Sofi S/o Mohd. Akber Sofi R/o Mir Behari purchased a piece of land measuring 10 kanal & 12 marlas, in equal shares, under the above

mentioned survey No. situated at Gulab bagh Zakura Thesil. Ganderbal. The land was in the shape of orchard and the same was purchased by

them from Gani Wani, Gh.Rasool Bhat and Salam Malik by means of a sale deed executed on 2nd May, 1974 and registered on 20-12-1974 by

Sub Registrar Ganderbal, Kashmir. After the purchase of land the same was mutated in their names by means of mutation Order No. 101 and thus

the land came in their possession. It was further pleaded was that the appellant and respondent No. 1 partitioned the said land privately each

having possession of his respective share of 5 Kanals & 6 marlas and that they enjoyed its fruits. The share of the appellant according to him fell on

the Eastern side.

It was further alleged by the appellant that respondents 2 to 5 have without any right and in collusion with respondent No. 1 taken possession of

the land forcibly. According to him Respondents 2 to 5 base their claim on an agreement to sell allegedly executed by the appellant and respondent

No. 1 on 19.10.1977 and registered on 27.10.1977 in favour of respondents 2 to 4 through respondent No. 5. It is further stated that at the time

the alleged agreement to sell is shown to be executed, there was a complete prohibition on alienation of land and the agreement was entered into to

over come the bar imposed by the Provisions of Agrarian Reforms Act.

It was pleaded by the plaintiff before the trial court that the alleged agreement to sell, a certified copy of which has been placed by him on file

before the trial court was void abinitio being in violation of the provisions of law and that since it had not been executed by the parties as one Ab.

Aziz Shawal had appeared on behalf of the respondents 2 to 4 to accept it, it did not conform to the provisions of Section 54 of the Transfer of

Property Act. It was on the basis of these facts that he claimed to declare the agreement to sell as null and void and prayed to the court that since

the respondents have taken possession from him under an invalid agreement to sell the possession be restored to him.

The plaintiff, therefore, prayed for the following relief in the suit:-

a/ ""A decree for declaration be passed to the effect that the agreement to sell dated 19-10-1977 registered on 27-10-1977 is null and void and

does not confer any right on the defendants No. 2 to 5 and the plaintiff continues to be the owner of his land measuring 5 Kanals and 6 Marlas in

survey No. 438 situated at Gulab Bagh, Ganderbal.

b/ A decree for possession of the said land measuring 5 kanals and 6 marlas bearing Khasra No. 438 and Khewat No. 9 situated at Gulab Bagh

Zakoora Tehsil Ganderbal, Srinagar (towards Eastern Side) be passed in favour of the plaintiff and against the defendants 2 to 5.

The trial court summoned the defendants, they appeared and remained present for some time but subsequently absented themselves so ex-parte

proceedings were initiated against them by the trial court and after taking ex-parte evidence the trial court by means of the impugned judgment

dismissed the suit of the Appellant-plaintiff on the main ground that the parties have entered into an agreement to sell as such the plaintiff had no

right to claim possession from the defendants. So far the case of the appellant-plaintiff regarding purchase of 5 kanlas & 6 marlas of land was

concerned the trial court however, found that the plaintiff had established the same. The trial court has in this behalf held:-

After careful scanning and sifting of the evidence and other record available on the file what emerges therefrom is that the land measuring 10

kanals and 12 marlas have been purchased by the plaintiff and defendant No. 1 vide sale deed dated 2,5.1974 registered on 20-12.1974..

The plaintiff by producing the witnesses has proved that plaintiff and defandant No. 1 had purchased the land measuring 10 kanlas & 12 Marals

under survey No. 438 and had proved the sale deed EXPW RK3.

The trial court however did not agree with the plaintiff that alleged agreement to sell was in any way in effective and found that since the

possession had been delivered to the defendants 2 to 4 under the terms of the said document, the plaintiff was not entitled to any relief. In this

behalf the trial court observed as under:-

it is the cumulative effect of the recitals of the documents which are to be considered. The recitals of the documents presents a different position

that is as per the documents possession has been delivered, part amount of the consideration has been received, but, however, the defendants have

not chosen to prove the recitals of the documents by contesting the case. But at the same time plaintiff too has not been able to prove anything

contrary to the recitals of the documents because it is the plaintiff who has challenged the agreement EXPW RK4 so it was for him to prove

adverse to the recitals of the said documents.

The trial court also did not accept the argument of the plaintiff that the agreement to sell was not a valid document in terms of the provisions of

Section 54 of the Transfer of Property Act and pleaded that even if it was not in conformity with Section 54, the document cannot be deemed to

be void. It was observed that:-

As per Section 54 both the parties should have sign the documents but on behalf of the defendants it is Ab. Aziz who has effected his signature

while acting on behalf of the defendants. The defendants are admittedly in ex-parte. So it is not known as to whether that Ab. Aziz Shawal had any

authority to put the signature on behalf of the defendant No. 2 to 4. Even otherwise, if he had no authority to put the signature rather to accept the

contents of the documents still documents cannot be declared to be void. It can be said to be not in conformity with the provisions of Section 54 of

the Transfer of Property Act, which in turn would give rise to a situation as to whether specific performance of the agreement could be enforced,

but that is not the point to be decided. In short, documents on the said ground cannot be declared to be void.

It is these findings of the learned trial court which are impugned in the present appeal on the ground that the trial court has committed a grave

error in dismissing the suit.

Respondents have not appeared before this court and have been proceeded exparte. The present appeal is therefore Heard in exparte.

Heard the Ld. Counsel for the appellant. Considered.

Mr. G.A. Lone appearing for the appellant has vehemently attacked the impugned judgment on three main grounds:--

a/ firstly that the agreement to sell which was challenged before the trial court in the suit is null and void on the ground that it was allegedly entered

into at the time when there was a complete prohibition on alienation of land under the provisions of Agrarian Reform Act, 1976.

b/ secondly that the agreement to sell under challenge was not a valid document in view of the provisions of Section 54 of the Transfer of Property

Act; and

c/ thirdly that under the provisions of 138 of Transfer of Property Act which is a special provisions applicable to the State, no land could have

been transferred without a registered deed.

Section 31 of the Land Agrarian Reforms Act, 1976 as it stood before its amendment by means of the Amending Act No. XXXVIII of 1997

was as under:-

'Notwithstanding anything contained in any law for the time being in force-

(a) (i) alienation of land, whether by act of parties or a decree or order of a Court or of a Revenue Officer; or

(ii)...except under such conditions as may be prescribed and with previous permission of the Revenue Minister, or such officer as may be

authorised by him in this behalf, is forbidden:

.... .... ....

(b) .........

(c) no transfer of possession of land effected in anticipation of alienation of such land shall be valid and the land in respect of which possession has

been so transferred shall, after such (enquiry), as may be prescribed, vest in the State.

(d) no document purporting to alienate land in contravention of the provisions of this section shall be admitted to registration"".

Under this provision there was a complete restriction on alienation of land. Definition of the 'land' at the commencement of the Act included an

'orchard' too and alienation, under the Act means sale, gift, mortgage with possession or exchange.

The Section besides prohibiting alienation of land by means of sale, gift, mortgage with possession or exchange provided that no document

could be admitted to registration by the Registering Authority which purported to alienate land in violation of the provisions of the Act. The Section

further prohibited transfer of possession of land in anticipation of such alienation. A conjoint reading of the various provisions of Section 31 of the

Agrarian Reforms Act provided that not only there was restriction on the alienation of land but transfer of possession under any agreement in

anticipation of such alienation was also prohibited and the registering authorities were specifically directed not to admit any document to registration

which was in violation of the provisions of the Act. When there was such a blanket ban the parties could not have entered into any agreement to

sell. Once the Act provided a bar on the alienation of land and placed restriction on transfer of possession, agreement for any such act was

contrary to law and could not be allowed.

Agrarian Reforms Act was a unique and revolutionary piece of legislation which aimed at making reform in the agrarian land by abolishing

absentee landlordism and intermediaries. For effective implementation of the provisions of the Act it was essential to maintain the status regarding

ownership and possession of land. To achieve it various provisions of the Act expressly and sternly prohibited change of title or possession in

respect of the land after the prescribed date under the Act. Authorities under the Act are empowered not to give effect to any alienation which is

made to defeat the provisions of the Act. It is the duty of not only of the authorities under the Act but also of the Civil Courts to see that an act

which is otherwise in violation of the Act does not become effective by the orders of such courts. Any order or decree of a Civil Court or act of

admitting a document to registration by the Registering Authority cannot make a transaction valid if the same is otherwise in violation of the said

Act.

A party could not enter into an agreement for an act which was otherwise not permitted by law. The agreement to sell in the present case was

therefore in violation of the provisions of the Agrarian Reforms Act and was not enforceable at all.

Restriction on alienation of land since been removed as Section 31 of the Agrarian Reforms Act, 1976 stand repealed, but this fact, in my

view, will not have any effect on the invalidity of the said agreement to sell on the ground that a document takes effect from the date it is duly

executed. Validity of a document, particularly of a document which creates or extinguishes rights of the parties, is to be judged on the date of its

execution. If execution of a document was forbidden on the date of its execution, subsequent change in the statute cannot validate such a

document.

Section 54 of the Transfer of Property Act provides as under:-

'54. ""sale' defined, ""sale"" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Such transfer, in the case of tangible Immovable property or in the case sale how made of a reversion or other intangible thing, can be made only

by a registered instrument.

Contract for sale -- A contract for the sale of Immovable property is contract that a sale of such property shall take place on terms Settled

between the parties, but no such contract shall be valid, unless it is in writing, and signed by the parties.

It does not, of itself, create any interest in or charge on such property.'

It does not, of itself, create any interest in or charge on such property"".

To make a contract for sale, a valid contract it should be in writing and signed by the parties. It is mandatory provision of law and the parties

have to establish, whenever a dispute arises regarding such an agreement, that the formalities as required by law have been complied with in letter

and spirit.

It may be relevant here to refer to Section 54 of the Central Transfer of Property Act, relevant portion of which provides as under:

'54. ""A contract for sale of immovable property is contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property"".

Perusal of this provision would show that the words 'but no such contract shall be valid, unless it is in writing, and signed by the parties 'are not

present in the Central Act. Thus while an agreement to sell may not be necessarily in writing in rest of the country, no such agreement can be a

valid agreement in the State unless it is in writing and duly signed by the parties. Words 'but no such contract shall be valid, unless it is in writing,

and signed by the parties' have been specifically used in Section 54 in the State Act depicting intention of the legislature not to give recognition to

the agreements which are not in writing and signed by the parties.

In the present case the agreement to sell is not signed by the respondents 2 to 4 so cannot be treated a valid document under the provisions of

Section 54 of the Transfer of Property Act. The trial court has not taken a correct approach while appreciating the argument of the Appellant-

plaintiff. It has given a self contradictory finding on the issue. From the pleading and the evidence on record it is not clear as to what status

respondent No. 5 namely Ab. Aziz Shawal was holding in entering into agreement with other respondents. The respondents 2 to 4 have not

themselves signed it. Thus the mandatory requirement of law has not complied with. Since the document does not conform to the provisions of

Section 54 of the Transfer of Property Act, it is not a valid agreement in the eye of law at all.

The plea raised by Ld. Counsel regarding application of Section 138 Transfer of Property Act also appears to be sound. Section 138 Transfer

of Property Act is a special provision applicable to the State only as no analogous provision is contained in the Central Transfer of Property Act. It

provides as under:-

(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.

(3) No person shall take possession of or commence to build or build on, any land in the 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)"".

Sub Section (1) provides that a transfer of immovable property is valid only when it is effected through a deed which is duly registered under

the provisions of Registering Act and sub Section (3) specifically provides that no person shall take possession of any land in the 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).

Sub Section (3) is a special provision for Kashmir province only, so it is the duty of the Courts, in the Kashmir province to see, while dealing

with agreement to sell relating to land in the province that the requirements of Sub Section (1) of Section 138 of the Transfer of Property Act have

been complied with. Transfer of possession relating to such land is valid only when the land is transferred in accordance with the provisions of sub

Section (1) otherwise not. Transfer of possession in violation of such provisions will not create any right or interest in the person who takes

possession of the land under a document executed in violation of the section. The provision squarely applies to the present case and there being no

valid document as provided by Sub Section (1) of Section 138 of the Transfer of Property Act, the respondents 2 to 4 could not have taken a

valid possession of the land at all.

Under these circumstances I find that the finding of the trial court on all these points cannot sustain. However, in the circumstances of the case I

feel it proper to remand the case to the trial court for deciding the suit of the plaintiff on the basis of evidence already lead and in view of the

findings arrived at as above.

The Judgment and decree passed by the trial court impugned in this appeal is, therefore, set aside to the extent of its findings relating to and

based on agreement to sell. The case is remanded to the trial court for a fresh disposal in light of the observations made above.

The appeal is disposed of accordingly.