Srinagar- The High Court of J&K and Ladakh on Monday dismissed a petition challenging the eviction of occupants from a migrant property in Verinag, Anantnag, holding that an unregistered mortgage-cum-conditional sale agreement does not confer ownership rights and cannot override the protections provided under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.
A bench of Justice Moksha Khajuria Kazmi upheld the orders of the District Magistrate, Anantnag, and the Financial Commissioner (Revenue), directing eviction of the petitioners from land measuring 3 kanals and 13 marlas at Bagwanpora, Verinag, and restoring its custody to the District Magistrate as mandated under the 1997 Act.
The petitioners had claimed possession of the land since 1986 on the strength of a notarized mortgage-cum-conditional sale agreement executed by the original owner, Radha Krishen, and a 1988 decree passed by the Assistant Collector, Agrarian Reforms. They contended that the documents conferred lawful ownership and possession over the property.
Rejecting the plea, the Court ruled that an unregistered agreement cannot legally transfer ownership of immovable property and cannot be relied upon to claim possession. It observed that the petitioners, if seeking enforcement of the agreement, must approach the appropriate civil court rather than invoke writ jurisdiction.
According to the petitioners, the original owner, Radha Krishen, had executed a mortgage-cum-conditional sale agreement in 1986 after borrowing Rs 3.60 lakh from their predecessors. They contended that the land was mortgaged as security for the loan with a stipulation that, if Radha Krishen failed to repay the amount, ownership of the property would automatically stand transferred to the mortgagees. On this basis, they claimed lawful possession and ownership of the land since 1986.
The petitioners also relied on a decree dated March 22, 1988, passed by the Assistant Collector, Agrarian Reforms, Verinag, contending that it further strengthened their claim over the property.
Rejecting the plea, the High Court ruled that the agreement, being an unregistered document, did not create any legal title or ownership in favour of the petitioners. It observed that any claim arising out of such an agreement must be pursued before a competent civil court and not through a writ petition.
The Court further held that the property was a protected migrant property under the 1997 Act and noted that the petitioners had themselves admitted this status in earlier proceedings. It reiterated that the District Magistrate, as custodia legis, is empowered to protect migrant properties and evict unauthorized occupants.
On the 1988 decree relied upon by the petitioners, the Court held that the Assistant Collector, Agrarian Reforms, had exercised powers that were never conferred upon him under law. Declaring the decree without jurisdiction, void ab initio and a nullity, the Court observed that a decree passed by a court or authority lacking inherent jurisdiction is coram non judice and has no legal sanctity. It further held that where an authority acts wholly outside its jurisdiction, a citizen is not required to file an appeal against an order that is already legally non-existent.
Finding no illegality or perversity in the impugned orders of the District Magistrate and the Financial Commissioner, the High Court dismissed the writ petition as devoid of merit without imposing costs.
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