Srinagar, Jul 27: 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, the High Court J&K and Ladakh Monday held.
A bench of Justice Moksha Khajuria Kazmi said this while dismissing a plea challenging the eviction of occupants from a migrant property in south Kashmir’s Verinag.
The petitioners had claimed possession of the land since 1986 based on a notarised mortgage-cum-conditional sale agreement executed by the original owner, Radha Krishen, and a 1988 decree passed by the Assistant Collector, Agrarian Reforms.
Furthermore, their contention was that Krishen had borrowed Rs 3.60 lakh from their predecessors as security for the loan and mortgaged the land with the stipulation that in the event of failure to repay, the ownership of the property would stand transferred to the mortgagee.
They also submitted that the documents conferred lawful ownership and possession over the property.
In response to their plea, which it eventually dismissed, the court upheld the orders issued by the District Magistrate, Anantnag, and the J&K’s 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 court held that an unregistered agreement could not legally transfer ownership of immovable property and could not be relied upon to claim possession.
The petitioners, if seeking enforcement of the agreement, must approach the appropriate civil court rather than invoke writ jurisdiction, it said.
The court underscored that the property was undisputedly a migrant property protected under the 1997 Act and that the petitioners had earlier admitted this status in previous litigation.
It noted that the District Magistrate acts as custodia legis of migrant properties and is empowered to evict unauthorised occupants to safeguard such assets.
In response to the 1988 decree relied upon by the petitioners, the court emphasised that the Assistant Collector, Agrarian Reforms, lacked jurisdiction to pass such a declaration, rendering the decree a nullity in law and incapable of conferring any legal rights.
“It is thus settled by the Apex Court that if an authority acts wholly outside its jurisdiction a citizen does not need to proactively file an appeal to kill something that is already legally dead,” the court said. “Since the decree passed by the Assistant Collector, Agrarian is without jurisdiction, as such is void(nullity) in the eyes of law, and has no legal sanctity.”
The court observed that “it is settled law that decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram-non-judice.”
Finally, the court observed the decree dated March 22, 1988 as “nullity and void ab-initio” saying as such the same has no validity as per law.
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