Kashmir Impulse Desk

Srinagar, July 27

The High Court of Jammu and Kashmir and Ladakh upheld the eviction of occupants from a migrant property in south Kashmir’s Verinag, ruling that an unregistered mortgage-cum-conditional sale agreement could not confer ownership rights or override statutory protections.

A bench of Justice Moksha Khajuria Kazmi dismissed a petition challenging orders directing the eviction of occupants from 3 kanal and 13 marlas of land at Bagwanpora, Verinag, in Anantnag district.

The petitioners had claimed possession of the property since 1986, relying on a notarised mortgage-cum-conditional sale agreement executed by the original owner, Radha Krishen, and a decree issued in 1988 by the Assistant Collector, Agrarian Reforms.

According to the petitioners, Krishen had borrowed Rs 3.60 lakh from their predecessors and mortgaged the land as security for the loan. They said the agreement provided that ownership would pass to the mortgagee if the loan was not repaid.

The petitioners argued that the agreement and subsequent decree gave them lawful ownership and possession of the property.

The High Court rejected the claim and upheld directions issued by the District Magistrate, Anantnag, and the Financial Commissioner (Revenue) ordering their eviction and restoration of the property to the custody of the district administration under the Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997.

The court said an unregistered agreement could not legally transfer ownership of immovable property or be used to establish a right to possession.

It said the petitioners could seek enforcement of the agreement, if otherwise legally permissible, before the appropriate civil court rather than through writ proceedings.

The court also noted that the property was undisputedly migrant property protected under the 1997 law and that the petitioners had acknowledged its status in earlier litigation.

It said the District Magistrate acted as custodian of migrant properties and had the authority to remove unauthorised occupants to protect such assets.

The court further rejected reliance on the 1988 decree, holding that the Assistant Collector, Agrarian Reforms, lacked jurisdiction to issue a declaration conferring ownership rights over the property.

It described the decree as legally void and incapable of creating any enforceable rights.

The court said a decision issued by an authority acting beyond its jurisdiction had no legal validity and did not require a separate appeal to establish its nullity.

It ultimately held that the March 22, 1988 decree was void from the outset and had no legal sanctity.