Reshma Jan (Aged 30 Years) W/O vs Respondent(S)
2025 Latest Caselaw 1809 J&K/2

Jammu & Kashmir High Court - Srinagar Bench

Reshma Jan (Aged 30 Years) W/O vs Respondent(S) on 16 October, 2025

Author: Moksha Khajuria Kazmi

Bench: Moksha Khajuria Kazmi

                                          S.No. 40
                                          Regular List
IN THE HIGH COURT 0F JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR


                              RFA 104/2024
                                               Reserved on:08.10.2025
                                          Pronounced on:16.10.2025
                                          Uploaded on:16.10.2025

                                         Whether the operative part or
                                         full judgment is pronounced: Yes/No


   1. RESHMA JAN (AGED 30 YEARS) W/O ...Petitioner(s)/Appellant(s)
      AIJAZ HANDOO
      R/O UPPER SATHU BAR BAR SHAH,
      AT PRESENT CHANDPORA HABBA
      KADAL, SRINGAR
   2. AIJAZ HANDOO (AGED 35 YEARS)
      S/O MOHAMMAD IRBAHIM HANDOO
      R/O BABAPORA HABBA KADAL,
      SRINAGAR


Through: Mr. N. A. Beigh, Sr. Advocate with
         Mr. Sofi Manzoor, Advocate

                                   Vs.

                                                 ...Respondent(s)
   1. PARVEENA AKHTER
      D/O GHULAM MOHAMMAD SHAKSAZ
      R/O BABAPORA HABBA KADAL,
      SRINGAR
      AT PRESENT CITY COLONY ILLAHI
      BAGH BUCHPORA, SRINAGAR
   2. SAHIL AHMAD KHUSHBASH
      S/O MEHRAJ-UD-DIN KHUSHBASH R/O
      CHINKAR MOHALLA HABBA KADAL
      SRINAGAR

Through: Mr. Naveed Gul, Advocate for R-1
         Mr. Mir Majid Bashir, Advocate R-2

CORAM:HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI,JUDGE

                              JUDGEMENT

INTRODUCTION

1. By this Regular First Appeal (RFA), the appellants have assailed the

judgment and decree dated 16.12.2024, (for short "the impugned

order") passed by the learned 4th Additional District Judge, Srinagar

(for short, "the trial court") in a civil suit titled "Parveena Akhter v.

Reshma Jan and Others", whereby the trial court has declared the

sale deed executed by Mst. Naseema while impersonating as

Parveena Akhter on 17.02.2021, registered on 22.03.2021, in favour

of defendant No.1 (appellant herein) in respect of land measuring 2

kanals situated at Barinambal, Tehsil Khanyar, Srinagar, falling

under Khasra Nos. 936 & 937, Khewat No. 194, Khata Nos. 560 &

562, as null void ab initio, non est in the eyes of law. The trial court

has further held that the shed constructed by defendant No.1 over the

suit property is illegal and has directed its removal, permanently

restraining the defendants from interfering with the suit property,

while restoring the possession thereof with the plaintiff.

BRIEF FACTS

2. The case of the appellants, as set out in the appeal, is that appellant

No.1 purchased a parcel of land measuring 2 kanals situated at Baba

Demb, District Srinagar, falling under Khasra Nos. 936 & 937,

Khewat No. 200, Khata Nos. 587 & 589, from one Parveena Akhter

W/o Noor Mohammad Dar D/o Ghulam Mohammad Shaksaz R/o

Sheelteng, Baba Pora Habba Kadal, Srinagar, through a registered

sale deed dated 17.02.2021. It is pleaded that the sale deed was

registered after due verification of revenue records and that the

appellant has been in peaceful possession of the land since its

execution.

3. The respondent No.1, however, filed a suit challenging the above

said sale deed on the ground that she had already purchased the suit

land through an earlier sale deed dated 18.04.2009, and therefore,

the subsequent sale deed executed in favour of appellant No.1 was

fraudulent and without authority.

4. The appellants had filed their written statement and resisted the suit,

inter alia, on the grounds that; the suit suffered from non-joinder of

necessary parties, as the original vendor, who executed the sale deed

in favour of appellant No.1, was not impleaded as party to the suit;

that the plaint disclosed no cause of action; the trial court ought to

have impleaded the vendor suo motu after recording her statement

prior to framing of issues.

GROUNDS OF CHALLENGE

5. The appellants have primarily challenged the impugned judgment

and decree on the following grounds that the suit was liable to be

dismissed for non-joinder of necessary parties, namely, the vendor

Parveena Akhter who sold the land to appellant No.1, and also Tahir

Ahmad Dar, who as per respondents' own case, had sold the

property to her earlier; that the trial court failed to frame issues in the

suit, and proceeded to pronounce the judgment and decree rendering

the proceedings contrary to the mandate of the Code of Civil

Procedure; that the trial court travelled beyond the pleadings and

granted reliefs not even prayed for by the respondent, such as

permanent injunction, mandatory injunction, and direction for

demolition of the shed; in absence of necessary parties, no finding

could have been recorded on the alleged fraudulent execution of sale

deed, such as per the petitioners the judgment is, therefore, vitiated

by serious procedural irregularities.

SUBMISSIONS OF THE PARTIES

6. Learned senior counsel for the appellants has argued that the

respondents' suit was purely for declaration under Section 42 of the

Specific Relief Act, 1977, without seeking any consequential relief,

and therefore, was barred in terms of the proviso of that section 42.

Section 42, reads as follows:

"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."

7. It is contended that since the respondent, while challenging the sale

deed, did not claim possession, injunction, or any consequential

relief, the trial court could not have granted those reliefs suo motu.

8. Learned Senior Counsel for the appellant has placed reliance upon

the judgment of the Hon'ble Supreme Court in Bachhaj Nahar v.

Nilima Mandal and Another, wherein it has been held that a relief

not founded on the pleadings cannot be granted. The operative part

of the said judgment reads as under:

"It is fundamental that in a civil suit, the relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, the grant of relief is circumscribed by various factors like court fee, limitation, parties to the suit, as also grounds barring relief, such as res judicata, estoppel,

acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit, whatever be the relief that is prayed, the Court can, on examination of facts, grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the Court cannot grant a decree for rupees ten lakhs. In a suit for recovery of possession of property 'A', the Court cannot grant possession of property 'B'. In a suit praying for permanent injunction, the Court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence led, etc."

9. Further reliance has been placed on the judgment of the Hon'ble

Supreme Court in Moreshar s/o Yadaorao Mahajan v. Vyankatesh

Sitaram Bhedi (Dead) through LRs and Others, wherein it has been

held that non-joinder of a necessary party is fatal to the suit. The

relevant portion of the judgment reads as under:

" It could thus be seen that a 'necessary party' is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the Court. It has been held that if a necessary party is not impleaded, the suit itself is liable to be dismissed."

10.Learned counsel for respondent No.1 has submitted that though

issues were not formally framed, the trial court is empowered under

Orders X and XI CPC to decide the matter on the basis of material

and statements available on record.

11.The learned counsel for the respondent No.1 filed written

submission also in support of his claim, wherein, the learned counsel

has referred to certain case law of this Court as also of the Supreme

Court to contend that the trial court was justified in passing the

impugned decree even on the count of non-joinder of parties and

having granted the reliefs not prayed for. The copy of the written

submission is taken on record.

12.Learned counsel for respondent No.2 fairly conceded that the trial

court did not frame issues and also failed to implead necessary

parties. He has further pointed out that even the alleged executant,

Mst. Naseema, who purportedly impersonated as Parveena Akhter,

was neither impleaded nor examined by the trial court.

13.Heard learned counsel for the parties, considered their submissions

and perused the record.

DISCUSSION AND FINDINGS

14.From the material on record and the rival submissions, it is manifest

that the trial court proceeded to decree the suit without framing

issues as mandated under Order XIV Rule 1 of the Code of Civil

Procedure. Framing of issues is not a mere procedural formality but

a substantive safeguard ensuring that the controversy between the

parties is properly identified before adjudication. The omission to

frame issues goes to the root of the matter and vitiates the entire

proceedings.

15.Further, the Hon'ble Supreme Court in Moreshar s/o Yadaorao

Mahajan v. Vyankatesh Sitaram Bhedi (Dead) through LRs and

Others, has held that non-joinder of a necessary party is fatal to the

suit, since no effective decree can be passed in their absence. The

failure of the plaintiff to implead the executant of the disputed sale

deed, and its omission to direct her impleadment suo motu,

constitute a serious procedural irregularity that renders the decree

unsustainable.

16.Equally, significant is the fact that the suit filed by the respondent

was one for mere declaration of title under Section 42 of the Specific

Relief Act, 1977, without any consequential relief of possession or

injunction. The proviso to Section 42 explicitly bars a declaration

where the plaintiff, being able to seek further relief than a mere

declaration, omits to do so. In the present case, the plaintiff

admittedly sought no consequential relief; yet, the trial court

proceeded to grant permanent injunction, mandatory injunction, and

restoration of possession. Such reliefs, being wholly beyond the

pleadings and prayers, could not have been granted in view of the

settled law enunciated by the Hon'ble Supreme Court in Bachhaj

Nahar v. Nilima Mandal and Another, wherein it was held that a

relief not founded upon the pleadings cannot be granted by the court.

CONCLUSION

17.This Court is of the considered view that the impugned judgment

and decree dated 16.11.2024 passed by the learned 4th Additional

District Judge, Srinagar suffers from serious procedural infirmities.

18.The written submissions, submitted by learned counsel for the

respondent No. 1 are of no significance in view of the discussions

made herein before.

19.In view of the forgoing reasons, the impugned judgment and decree

cannot sustain and is hereby set aside, the matter is remanded to the

trial court for fresh consideration taking into account observations

made by this Court. The parties shall appear before the trial court on

3rd November, 2025

20.The appeal is accordingly allowed, on the above lines. A copy of this

judgment be sent to the trial court for compliance.

(MOKSHA KHAJURIA KAZMI) JUDGE SRINAGAR:

16 -10 -2025 Mubashir

I. Whether the judgment is speaking: Yes II. Whether the judgment is reportable: No