Section 138 J&K Transfer of Property Act: No Lawful Possession or Title Without a Written Registered Instrument

1. Introduction

Mst. Khati v. Abdul Rashid Salroo (Jammu & Kashmir and Ladakh High Court, Srinagar; decided on 21.11.2025) arose from a rural land dispute concerning a small parcel of land measuring 10 marlas comprised in Khasra No. 945 min at Village Jablipora, Tehsil Bijbehara, District Anantnag.

The plaintiff (Mst. Khati) sued for permanent prohibitory and mandatory injunction, alleging that the defendant (Abdul Rashid Salroo) was interfering with her ownership and cultivating possession. The defendant resisted, asserting possession over a larger area (01 kanal 10 marlas) in the same khasra number, allegedly “by virtue of a decree,” and further suggested that the plaintiff’s daughters had transferred their shares to him.

The Trial Court decreed injunction in favour of the plaintiff. The first appellate court reversed and dismissed the suit. In second appeal, the High Court addressed three substantial questions of law, centrally focusing on (i) maintainability in the face of alleged suppression/non-specification, and (ii) whether the appellate court could sustain a finding of possession in favour of the defendant without documentary title/transfer satisfying Section 138 of the J&K Transfer of Property Act.

2. Summary of the Judgment

The High Court allowed the second appeal, set aside the judgment and decree dated 24.08.2018 of the Principal District Judge, Anantnag (in Abdul Rashid Salroo v. Mst. Khati), and restored the Trial Court decree dated 10.11.2014 granting permanent prohibitory injunction restraining the defendant from interference.

  • On maintainability, the Court held that there was no suppression of material facts and that the suit land was sufficiently identified through khasra details, location, and evidence; non-specification by boundaries was not fatal where the parties understood the parcel in dispute.
  • On possession/title, the Court held that the first appellate court’s finding that the defendant was in possession was legally unsustainable because the defendant produced no valid transfer instrument meeting Section 138 requirements; mere oral assertions or informal arrangements cannot confer a lawful right to possess.
  • The Court concluded that the first appellate court erred in interfering with the Trial Court’s findings, having failed to apply the governing statutory mandate of Section 138.

3. Analysis

3.1 Precedents Cited

The judgment is anchored in a consistent line of authority enforcing strict compliance with formal transfer requirements in the Kashmir province. The Court relied on these precedents (titles reproduced exactly as in the judgment):

  1. Savitri Bai and another v. Savitri Bai (Supreme Court; Civil Appeal no.9035 of 2013; judgment dated 29thFebruary 2024)

    The High Court cited this decision as supporting the appellant’s position that a person cannot claim rights over immovable property without the legally prescribed instrumentality of transfer. In the present case, the defendant’s narrative of “purchase” from the plaintiff’s daughters (and alleged inclusion of the plaintiff’s share) remained unsupported by any sale deed or instrument satisfying statutory requirements.

  2. Jana Begum v. Badir Khan, 3 JKLR 226

    This case was used to reinforce the statutory bar flowing from Section 138: unless sale/transfer of immovable property is in writing and registered, certain legal consequences (there, entertaining a pre-emption suit) cannot follow. The High Court employed the precedent to underline Section 138 as a strict compliance regime, not a flexible evidentiary rule.

  3. Ghulam Hussain v. Ghulam Qadir, AIR 1978 J&K 88

    This authority was cited for the proposition that an unregistered transfer does not confer ownership and that a “mere possessory right” does not mature into ownership in the absence of the registered instrument contemplated by Section 138. The High Court used this to directly negate the defendant’s attempt to convert physical control into legally recognized entitlement.

  4. Sher-i- Kashmir National Medical Institute Trust v. State, 2005 SLJ 282

    This decision, as summarized by the High Court, emphasizes three consequences of Section 138: (i) no valid transfer without writing and registration as per Section 61(3) of the Registration Act, 1977; (ii) no lawful taking of possession by the transferee until such valid transfer; and (iii) no mutation/revenue alteration without production of the completed registered instrument. The High Court applied these consequences as decisive against the defendant’s pleaded “transfer” story.

  5. Gh. Hussain v. Gh. Qadir & others 2010 (8) JKJ HC-427

    This was cited as reiterating that possessory rights do not mature into ownership and that transfer without satisfying Section 138 is invalid, conferring no ownership. The High Court invoked it to demonstrate that the legal position is settled and that the first appellate court departed from binding principles.

3.2 Legal Reasoning

A. Maintainability: “Suppression” and “non-specification”

The High Court’s treatment of maintainability rests on two factual-legal determinations:

  • No suppression: The defendant’s own case was not that the plaintiff personally executed a sale/transfer in his favour. Rather, he claimed transfer through the plaintiff’s daughters (and vaguely suggested inclusion of the plaintiff’s share). In that setting, the Court held it was “rightly found” by the Trial Court that suppression could not be imputed to the plaintiff on a non-existent pleaded admission (i.e., she did not conceal a sale by her).
  • Sufficient identification of suit land: The Court emphasized that land can be specified by khasra number and area and, where necessary, clarified through evidence. It noted that pleadings and depositions (including references to proximity to Forest Office/National Highway and directional siting within the larger 30 marlas) disclosed the parcel with enough clarity—particularly because both parties were well aware of the land. The High Court termed the first appellate court’s contrary view “absurd” and indicative of failure to examine the trial record.

In effect, the judgment treats non-specification objections as non-fatal where identification is otherwise practicable through khasra details and evidence and where the controversy is not genuinely about which land, but about who can lawfully claim it.

B. Section 138 as the controlling rule on transfer, possession, and revenue entries

The core doctrinal contribution of the judgment is its rigorous application of Section 138 of the J&K Transfer of Property Act to defeat claims of “possession by purchase” unsupported by a duly executed registered instrument.

The Court parsed Section 138 into enforceable consequences:

  • Validity of transfer (Section 138(1)): No transfer of immovable property is valid unless it is in writing, registered, and registration is completed as per Section 61(3) of the Registration Act, 1977.
  • No possession without valid transfer (Section 138(3)): No person shall take possession of land in the Province of Kashmir transferred/contracted to be transferred to him unless and until transfer becomes valid under Section 138(1).
  • No mutation/revenue alteration without registered instrument (Section 138(4)): No revenue or court authority should alter settlement records absent production of the duly executed registered instrument.

Applying those statutory commands, the High Court held that the defendant’s position collapsed on evidence: he produced no document evidencing a legally valid transfer of the suit land, and witness testimony suggested the plaintiff was not present/signatory; references to “implied consent” and oral arrangements were treated as legally ineffectual against Section 138’s formal requirements.

C. Appellate interference with trial findings

The High Court found that the first appellate court not only misread the record on land specification but also effectively “vested ownership rights” contrary to Section 138 by accepting possession in the defendant without the mandated documents. That doctrinal error, in the High Court’s view, tainted the appellate court’s interference with the Trial Court’s findings on possession and entitlement to injunction.

3.3 Impact

The judgment is likely to influence J&K/Ladakh property litigation in at least four ways:

  1. Reinforced insistence on registered instruments: Parties claiming purchase/transfer in the Province of Kashmir should expect strict scrutiny under Section 138, including the inability to justify possession or revenue alterations through oral claims, informal writings, or alleged understandings.
  2. Litigation strategy in injunction suits: Defendants often resist injunctions by asserting physical possession. This case demonstrates that courts may treat possession claims as legally irrelevant (or unlawful) where the asserted right to possess is unsupported by Section 138-compliant documentation.
  3. Pleadings on land description: The decision signals that khasra-based identification, coupled with evidence clarifying the parcel within a larger survey number, can be adequate—especially where both sides understand the disputed parcel. Purely technical objections about boundaries may not succeed absent real confusion or prejudice.
  4. Appellate discipline: The judgment is a caution against appellate reversal that does not engage with the trial record or the governing statute. It frames such reversals as legally vulnerable where they implicitly validate transfers/possession barred by Section 138.

4. Complex Concepts Simplified

Permanent prohibitory injunction
A court order permanently restraining a person from doing an act—here, restraining the defendant from interfering with the plaintiff’s ownership/cultivating possession.
Mandatory injunction
A direction to perform a specific act (e.g., remove an encroachment). Although the suit was framed as seeking both, the operative relief ultimately upheld was prohibitory restraint against interference.
Civil second appeal & “substantial question of law”
A second appeal lies primarily on significant legal errors. The High Court here framed and answered three substantial questions of law, focusing on maintainability and the legal sustainability of possession findings absent documents under Section 138.
Khasra number / “min”
A khasra number is a revenue survey identifier for land. “Min” typically denotes a sub-part of a larger khasra entry. Courts often use khasra identifiers to determine which land is in dispute.
Mutation
An entry in revenue records reflecting change in title/possession (e.g., by inheritance or sale). The judgment highlights that, under Section 138(4), mutation/alteration cannot be obtained without producing the registered instrument.
Possession in fact vs. lawful possession
A person may physically occupy land, but without lawful basis (e.g., a valid registered transfer), such occupation may be treated as trespass/illegal interference rather than legally protected possession—an approach the High Court endorsed through Section 138.
Section 138, J&K Transfer of Property Act
A stringent rule for Kashmir Province: transfer must be written and registered; possession should not be taken on the basis of an invalid transfer; and revenue records should not be altered without production of the completed registered instrument.

5. Conclusion

Mst. Khati v. Abdul Rashid Salroo reasserts a hard-edged statutory principle: in the Province of Kashmir, claims of transfer, possession, or revenue recognition in immovable property must be grounded in a written, duly registered instrument as required by Section 138 of the J&K Transfer of Property Act. The High Court treated the first appellate court’s acceptance of the defendant’s possession claim—without such documentation—as legally unsustainable, restored the Trial Court’s injunction, and clarified that khasra-based identification (supplemented by evidence) can defeat technical objections of non-specification where the land is otherwise discernible.

The broader significance lies in the judgment’s insistence that courts must not, directly or indirectly, validate informal property transfers or confer legal advantage on possession unsupported by the registration mandate—thereby strengthening formal conveyancing discipline in property disputes.