Jammu & Kashmir High Court - Srinagar Bench
Mahjuba Akhter & Ors vs Syed Mukhtar & Ors on 14 August, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
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IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR
Reserved on:24.07.2025
Pronounced on: 14.08.2025
RFA No.20/2020
MAHJUBA AKHTER & ORS.... APPELLANT(S)
Through: - Mr. Salih Pirzada, Advocate, with
Mr. Aabid, Advocate.
Vs.
SYED MUKHTAR & ORS. ...RESPONDENT(S)
Through: - Mr. Shariq J. Reyaz, Advocate.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) Through the medium of present appeal, the appellants
have challenged judgment and decree dated 19.10.2020
passed by the learned Principal District Judge, Srinagar.
2) It appears that the predecessor-in-interest of the
appellants/plaintiffs filed a suit before the learned District
Judge, Srinagar (hereinafter referred to as "the trial court")
seeking partition of joint property by metes and bounds
with a prayer for separate possession. It was pleaded that
father of the original plaintiff and defendants No.1 to 3 had
died on 22.11.2002 leaving behind the following immovable
properties:
i. Land measuring 6 kanals 15 marlas 183
feet covered under Khasra
Nos.3431/757, 3432/757, 3434/757,
situated at Riyazat Teng, Khanyar
Srinagar.
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ii. Two storeyed residential house with
attic along with land underneath and
appurtenant thereto covered under
Survey Nos.3432/757 situated at
Riyazat Teng, Khanyar Srinagar.
3) It was further pleaded that after the death of the
father of the plaintiffs and defendants No.1 to 3, the
aforesaid properties devolved upon them in the ratio as
provided under Islamic law. It was pleaded that the
plaintiffs repeatedly requested defendants No.1 to 3 to
partition the aforesaid properties by metes and bounds but
they avoided to do so. It was further pleaded by the
plaintiffs that during pendency of the suit, they came to
know that defendants No.1 to 3 had sold a double storeyed
house along with land appurtenant and beneath measuring
01 kanal, 03 marlas and 53 sq.ft. under Khasra
No.3432/757 to defendants No.4 to 6 by virtue of an
agreement to sell dated 01.07.2004, pursuant whereto,
possession of the said property was handed over to the said
defendants.
4) It was pleaded that defendants No.1 to 3, in order to
defeat the rights and interests of the plaintiffs in respect of
the joint property, have executed the aforesaid agreement
to sell in favour of defendants No.4 to 6.It was contended
that in view of the provisions contained in the J&K Transfer
of Property Act, no rights have been conferred upon
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defendants No.4 to 6 in respect of the said portion of the
joint property and that the agreement to sell is not
sustainable in law.
5) Defendants No.1 to 3 contested the suit by filing their
written statement. In the written statement it was
contended by defendants No.1 to 3 that the suit property is
their exclusive property except to the extent of double
storeyed house along with land measuring 1 kanal 3
marlas and 53 sq.ft. in Khasra No.3432/757, which has
been sold to defendants No.4 to 6. It was pleaded that the
suit property was owned by grandfather of the plaintiffs
and defendants No.1 to 3, who had two sons including the
father of plaintiffs and defendants No.1 to 3. It was also
pleaded that out of the first marriage contracted by father
of the parties with Mst. Hafeeza, the plaintiffs were born
whereas out of his second wedlock with Mst. Haleema,
defendants No.1 to 3 were born. It was further pleaded that
grandfather of the parties, during his lifetime, had gifted 02
kanals 11 marlas of land under Khasra No.748 Khata No.7
situated at Riyazat Teng Khanyar, Srinagar, to the children
of Mst. Hafeeza i.e. the plaintiffs, vide gift deed executed on
4th Haar, 2001 (Bikrami). After the death of grandfather of
the parties, the father of the plaintiffs and defendants No.1
to 3 gifted 03 kanals of land under Khasra No.757 to his
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second wife, Mst. Haleema, vide gift deed dated
01.04.1978. Thereafter Mst. Haleema gifted 01 kanal of
land from the aforesaid land to defendant No.1 in terms of
gift deed dated 18.05.1982 registered on 02.08.1982.
6) Defendants No.1 to 3 further pleaded that Mst.
Haleema constructed a double storeyed house on her
remaining 02 kanals of land after obtaining permission
from Srinagar Municipality. Thereafter father of the parties
sold 01 kanal of land in Khasra No.3434 to Mst. Zamrooda,
the wife of defendant No.1, vide sale deed dated
19.04.1989. According to defendants No.1 to 3, defendant
No.1 and his wife, Mst. Zamrooda, constructed a house on
the land measuring 01 kanal which was purchased by Mst.
Zamrooda.
7) It was further pleaded by defendants No.1 to 3 that
their mother, Mst. Haleema, died on 06.10.2002 and her
property in the form of 02 kanals of land and a double
storeyed house constructed thereon has devolved upon
them and thereafter they sold the said double storeyed
house along with land measuring 01 kanal 03 marlas and
53 sq.ft. to defendants No.4 to 6 vide agreement to sell
dated 01.07.2004. It was further pleaded that father of the
parties had sold 01 kanal 04 marlas of land in Khasra
No.2719/799 to Ghulam Mohammad, Ali Mohammad and
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Ghulam Rasool sons of Ramzan Bhat and another 01 kanal
14 marlas and 94 sq.ft. of land under Khasra
No.2720/2054 to one Noor Shah S/o Qadir Shah. On the
basis of these assertions, it has been contended that the
plaintiffs are not entitled to any share from the properties
referred to in the plaint.
8) On the basis of the pleadings of the parties, the
learned trial court framed the following issues:
1. Whether the suit property mentioned in para 2
of the plaint is joint and un-partitioned between
the parties? (OPP)
2. Upon proof of issue No.1, whether the parties
are entitled to the suit property in accordance
with the ratio mentioned in para 3 of the plaint?
(OPP)
3. Whether the defendants have been delaying
the partition of the suit property as a result of
which the instant suit has been filed? (OPP)
4. Whether the grandfather of the plaintiffs, out of
the ancestral property has already given the
plaintiffs their shares and as such the plaintiffs
are stopped from claiming partition? (OPD)
5. Whether the defendants are in exclusive
possession and occupation of the suit property
and if so what is the effect thereof upon the
suit.
6. Whether the defendants have sold two
storeyed house as mentioned in para 9 of
preliminary objections and the plaint is li-able
to be dismissed for non-impleadment of the
buyers? (OPD)
7. Whether the grandfather of the defendants had
transferred land measuring 2 kanals and 11
Marlas falling under Khasra No. 748 in favour
of the plaintiffs by virtue of gift deed executed
on 4 Haar, 2001 Bikrami? (OPD)
8. Whether land measuring 3 kanals falling under
Khasra No. 757 has been gifted by the father
of the parties in favour of his 2nd wife (mother
of defendants) and whether land measuring 1
kanal has been sold by him in favour of wife of
defendant No. 1? (OPD)
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9. Whether Mst. Haleema (mother of defendants)
has gifted 1 kanal of land in favour of
defendant No.1 from the land gifted to her by
her husband, as per gift deed executed on
18/05/2003 if so, what is its effect, thereof,
upon the suit? (OPD)
10. Whether upon proof of issues 8 and 9, the
defendants are in exclusive lawful ownership
and possession of land measuring 4 kanals?
(OPD)
11. Whether the suit has not been properly valued
as the court fee is insufficiently paid, if so, what
is the proper valuation of the suit and the court
fee to be paid upon the plaint? (OPD)
12. Whether the plaint is liable to be rejected in
terms of Order VII Rule 11 CPC? (OPD)
13. Whether the suit property has not been
elaborated in the plaint in accordance with
Order VII Rule 3 CPC and is thereby liable to
be dismissed? (OPD)
13-A. Whether the defendants 1 to 4 have sold
double storeyed house along with land
measuring 1 kanal, 3 marlas and 53 ft² under
pursuant of the agreement to sell to the
knowledge of the plaintiff? (OPD)
13-B. In case issue No.13-A is proved in affirmative
whether the possession of the suit property has
been delivered to the defendants 5 and 6 to the
knowledge of the plaintiff? (OPD)
13-C. Whether by the agreement to sell the
ownership rights can be transferred and the
possession could be claimed under the
provisions of J&K Transfer of Property Act?
(OPP)
9) After framing of the issues, the parties went into trial
and the plaintiffs examined plaintiff Syed Mohammad
Sharief Qadiri and Syed Irshad Ahmad Qadiri as witnesses
in support of their case whereas defendants 1 to 3
examined defendant No.1 Syed Mukhtar Ahamd, defendant
No.2 Syed Muzaffar Qadiri and DWs Fayaz Ahmad and Adil
Muzafar Haqani as witnesses in support of their case.
Besides this, defendant No.5 examined himself as a witness
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and also examined DWs Sajad Ahmad Wani and Firdous
Ahmad Wani as witnesses in support of his case.
10) The learned trial court, after hearing the parties and
after analysing the evidence on record, dismissed the suit
of the plaintiffs. While deciding issue No.1, the learned trial
court observed that the plaintiffs have not been able to
prove their case on the basis of credible evidence. It has
also been observed that the plaintiffs have not described
the suit land so as to clearly identify the same.
11) The appellants have challenged the impugned
judgment and decree passed by the learned trial court,
primarily, on the grounds that defendants No.1 to 3 have
not led cogent and convincing evidence to show that 04
kanals of land out of the suit land has been gifted/sold by
the father of the parties in their favour as the documents
placed on record by the said defendants in this regard have
not been proved. It has been contended that mere
tendering of gift deed and the sale deed by defendants No.1
to 3 along with their written statement does not amount to
proof of these documents, particularly when the
appellants/plaintiffs had denied the validity of the said
documents. It has been further contended that even
otherwise, the learned trial court has not rendered any
finding as regards the fate of balance 02 kanals 15 marlas
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and 183 sq.ft. of the suit land as also with regard to the
share of the suit land which had reverted to the father of
the plaintiffs and defendants No.1 to 3 after the death of
his second wife, Mst. Haleema, on 06.10.2002, as the
father of the parties had died post the death of Mst.
Haleema.
12) I have heard learned counsel for the parties, perused
the grounds of appeal and impugned judgment passed by
the learned trial court and also perused record of the trial
court.
13) So far as the claim of the plaintiffs is concerned,
according to them the joint property of the parties
comprises of land measuring 06 kanals, 15 marlas and 183
sq.ft. covered under Khasra No.3431/757, 3432/757,
3434/757situated at Riyazat Teng Khanyar, Srinagar and
besides this, there is a two storeyed residential house with
attic along with land underneath and appurtenant thereto
covered under Survey No.3432/757 situated at Riyazat
Teng Khanyar, Srinagar. The defendants, in their written
statement, have not disputed the fact that the aforesaid
properties belonged to the father of the plaintiffs and
defendants No.1 to 3. However, their defence is that the
father of the parties gifted 03 kanals of land in Khasra
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No.757 to his second wife, Mst. Haleema, who happens to
be the mother of defendants No.1 to 3, vide gift deed dated
01.04.1978. Besides this, father of the plaintiffs and
defendants No.1 to 3 transferred 01 kanal of land covered
under Khasra No.3434 to Zamrooda, wife of defendant
No.1, vide sale deed dated 19.04.1989. Thus, defendants
No.1 to 3 have accounted for 04 kanals of land out of the
suit land which is measuring 06 kanals 15 marlas and 183
sq.ft.
14) The question whether defendants No.1 to 3 have been
able to establish and account for aforesaid 04 kanals of
land out of the suit land would be determined at an
appropriate stage. However, one thing is clear that
defendants No.1 to 3 have not stated anything about the
balance land measuring 02 kanals 15 marlas and 183 sq.ft.
out of the suit land nor have explained the fate of the suit
land which was in the hands of Mst. Haleema after her
death, as according to the plaintiff a certain share of said
land had reverted to the father of the petitioner, who was
alive at the time of death of Mst. Haleema.
15) Though defendants No.1 to 3 have stated that
grandfather of the parties had gifted 02 kanals and 11
marlas of land to the plaintiffs after the death of their
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mother Hafeeza, yet the said land is stated to be existing in
Khasra No.748 and not in suit Khasra numbers.
Defendants No.1 to 3 have also stated that the father of the
parties had sold 01 kanal 04 marlas of land to Ghulam
Mohammad etc. and 01 kanal 14 marlas and 94 sq.ft of
land to one Noor Shah, yet the land which is subject
matter of these two sale transactions bear different Khasra
numbers. Therefore, from the pleadings of the parties, it is
clear that no account has been given, so far as land
measuring 02 kanals 15 marlas and 183 sq.ft. out of the
suit land is concerned, by defendants No.1 to 3, meaning
thereby that at least the said portion of the suit land is
available for partition.
16) The learned trial court, while deciding issue No.1, has
thrown out the case of the plaintiffs as a whole by holding
that the plaintiffs have not properly described the suit land.
I am afraid the said finding of the learned trial court is not
in accordance with law for the reason that the plaintiffs
have clearly given the survey numbers and the location of
the whole of the suit land.
17) In terms of Order VII Rule 3 of CPC, when subject
matter of the suit is immovable property, the plaint has to
contain the description of the property sufficient to identify
it and in case such property can be identified by
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boundaries or numbers in a record of settlement or survey,
the plaint has to specify such numbers or boundaries. In
the present case, the plaintiffs have clearly described the
survey numbers of the suit land. Therefore, it was not open
to the learned trial court to throw out whole case of the
plaintiffs on the ground that proper description of the suit
land has not been given by them.
18) The question that arises for determination is that even
if case of defendants No.1 to 3 is accepted wherein they
have given account for 04 kanals of the suit land, still then
there is balance land out of the suit land available for
partition. However, before undertaking exercise of deciding
the mode and manner of partition of the said portion of the
suit property, it would be appropriate to get whole of the
suit land demarcated and to obtain a report from the
concerned revenue authorities regarding the position
obtaining on spot.
19) In view of the above, it is directed that the Deputy
Commissioner, Srinagar, shall depute the concerned
Tehsildar to undertake demarcation of the suit land i.e.
land measuring 06 kanals 15 marlas and 183 sq.ft. covered
under Khasra Nos.3431/757, 3432/757, 3434/757situated
at Riyazat Teng, Khanyar, Srinagar, and submit his report
relating to demarcation as also the structures/features
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existing on the land in question. The report in this regard
shall be furnished before this Court by the Deputy
Commissioner, Srinagar, within a period of one month from
the date a copy of this order is served upon him.
20) After obtaining the report as aforesaid, the matter
shall be taken up for further consideration on 06.10.2025.
(Sanjay Dhar)
Judge
Srinagar,
14 .08.2025
"Bhat Altaf-Secy"
Whether the order is speaking: Yes
Whether the order is reportable: No
