SWARN K. JAINversusRAVI MAHAJAN AND ORS.

                        [2008] 5 S.C.R 1030


A                         SWARN K. JAIN
                                  \/.
                    RAVI MAHAJAN AN'D ORS.
                  (Civil Appeal No. 5471 of 2000)
                           APRIL 2, 2008
B
                  [DR. ARIJIT PASAYAT AND                            t
               LOKESHWAR SINGH PANTA, JJ.]

         Transfer of Property:
c      Suit for possession - Omission by plaintiff to give details
  as to when the cause of action arose - No infirmity in finding
  of High Court that the omission was deliberate and not
  inadvertent - Hence, no case for interference by Supreme
  Court- J & K Transfer of Property Act, 1977 - s. 138- Transfer
D of Property Act, 1882.
       In a suit for possession, the plaintiff alleged that the      ~

  defendant had encroached upon his land and bounded
  the same by a boundary wall. It was alleged that when the
  plaintiff objected to illegal occupation of suit land by the
E
  defendants, the latter in turn offered to purchase the land,
  but negotiations for sale of the suit land did not materialize
  and illegal occupation by defendants over the suit land is
  continuing.

F        The defendants took the stand that the plaintiff by
    his own act and conduct was estopped from filing the suit
    in question as he had pocketed the entire sale                   ¥
    consideration. They further submitted that the plaintiff
    purposefully did not mention when the cause of action
    arose and this omission was not inadvertent but willful.
G
       When the High Court referred to three money receipts,
  the plaintiff did not say a word as to how and under what
  circumstances they were executed. The plaintiff also               ...
  feigned ignorance as to when construction of bound"lry
H                              1030
                SWARN K. JAIN v. RAVI MAHAJAN AND ORS.                 1031
                        [DR. ARIJIT PASAYAT, J.]

           wall was raised. The High Court ultimately came to a A
           finding that omission by the plaintiff to give· details of the
1          cause of action was intentional. The said finding is
           challenged in the present appeal.
                Dismissing the appeal, the Court
                                                                               B
     ~         HELD:1. It was required of the plaintiff to lead as to
           how the writing came into existence as regards receipt of
           money. No detail about cause of action was mentioned
           and no date was also indicated when the construction
           was made. [Para 8] [1034-F]                                         c
                 2. The finding of High Court does not suffer from any
           infirmity. The High Court has elaborately discussed as to
           why it came to the conclusion that the omission regarding
           cause of action was deliberate and was not inadvertent
           omission. This was a case where no interference is called D
           for with the well-reasoned order of the High Court.
     ~
           [Paras 10, 11] [1035-D, E & F]
               CIVIL APPELLATE JURISDICTION : Civil Appeal No.
           5471 of 2000
                                                                               E
                 From the final Judgment and Order dated 19.07.1999 of
           the High Court of Jammu & Kashmir at Jammu in LP.A. (C) No.
           8 of 1993.
                Naresh Kaushik, Lalita Kaushik, B.S. Methaila, Arnita
           Kalka!, Parag Goyal and Satish D. for the Appellant.                F

     ·+        S.R. Singh, Bimal Roy Jad and Sunita Pandit for the
           Respondents.
                The Judgment of the Court was delivered -by
                                                                               G
                 DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
·1
           the judgment of a Division Bench of the J & K High Court
     ...   reversing the judgment of learned Single Judge of the High Court.
                .2. Background facts in a nutshell are as follows:
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    1032      SUPREME COURT REPORTS                 [2008] 5 S.C.R.


A         3. Stand of the defendants who were the appellants before
    the High Court was that the plaintiff by his own act and conduct
    is estopped from filing the suit in question seeking possession
    from the defendants as he had pocketed the entire sale
    consideration and was not entitled to claim relief. It was also
B   submitted that the cause of action when arose was not
    purposefully mentioned by the plaintiff and this omission is not
    inadvertent but is willful. Reference was also made to Section
    138 of the J & K Transfer of Property Act, 1977 (1920 AD).
    Plaintiff's advocate contended that the doctrine of part
c   performance as embodied in the Transfer of Property Act, 1882
    (Central Act), does not find mention in the Act and, therefore,
    defendants being tress-passers claim of the plaintiff cannot be
    defeated.
        4. The High Court referred to three documents i.e. receipts
D dated 30.1.1974, 19.11.1973 and 23.3.1974. While appearing
  as PW-1, the plaintiff did not say a word as to how and under
  what circumstances the documents were executed. He also
  admitted the execution of the documents and construction of
  boundary wall having been done by the defendants. However,
E he feigned ignorance as to when the construction was raised.
  The height of the wall and the defendants having access to the
  passage were admitted. In the last line of the statement he
  admitted that within one or two years after receipt of the money
  he saw the defendants had constructed the boundary wall. The
F Division Bench found that the omission to give details when the
  cause of action arose to the plaintiff for maintaining the suit
  against the defendants was purposeful and intentional. Had
  these facts been specifically pleaded, defendants would have
  controverted them. Despite this omission, defendants pleaded
G their case and disputed the claim of the plaintiff. No replication
  was filed. High Court referred to Section 138 of the J & K Act
  which reads as follows:
           "'138. Transfer of immovable property after due
           registration -
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            SWARN K. JAIN v. RAVI MAHAJAN AND ORS.                  1033
                    [DR. ARIJIT PASAYAT, J.]

            (1) No transfer of immovable property except in a case          A
            governed by any special law to the contrary, shall be valid
            unless and until it is in writing registered and (the
            registration thereof has been completed in accordance
            with Sub-section (3) of Section 61 of the Registration act,
            1977).                                                          B
    \,      (2). No Court shall entertain a suit for pre-emption in
            respect of transfer of any such immovable property unless
            the transfer complies with the provision of sub-section (I).

            (3). No person shall take possession of or commence to          c
\           build or build on any land in Province of Kashmir which
'           has been transferred or has been contracted to be
            transferred to him unless and until such transfer becomes
            valid under the provision of sub-secti<;in (1 ).
            (4). No person who has obtained a transfer of immovable         D
     I
            property referred to in sub-section (1) shall apply for and
    t       obtain from any Revenue or Settlement Officer or Court
            any alteration in any existing entry in any settlement record
            of paper, unless such person produces before such officer
            or court a duly executed registered instrument (the             E
            registration whereof has been completed in the manner
            specified in sub-section ( 1).

            And no such officer or court shall alter or cause to be
            altered any such entry except upon tide production of an
            instrument registered in the aforesaid manner:                  F

     ::(.   Provided that nothing in his section applied to a lease of
            agricultural land for one year or to a lease of any other
            land for a period not exceeding seven years.
            Provided also that nothing iri sub-sections (3) and (4) shall G
            be deemed to apply to transfers by will or by any rule of
            interstate succession or by the operation of the law of
            survivorship."
            5. After referring to sub-section (1) of Section 138 the High
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    1034       SUPREME COURT REPORTS                    (2008] 5 S.C.R.

                                                                            ......
A   Court found that the transfer has to be in writing and registration
    has to be completed in accordance with sub-section (3) of
    Section 61 of the Registration Act (1977 BK). Sub-section (3)
    of Section 138 has no application to the province of Jammu
    and it only applies to province of Kashmir. It was noted that
B   Section 138 (3) bars taking possession, building etc. only in
    the province of Kashmir. This omission relating to Jammu                _.,.'
    province has not at all been adverted to by the learned Single
    Judge. Plaintiff continued to receive the payments from the
    defendants till 23rd March, 1974 as is evident from Ex.PW-3.
c         6. Stand of the learned counsel for the appellant was that
    the suit was filed on 16.9.1982 i.e. 8 years after the alleged
    date of execution of agreement. Full consideration was not paid
    and till 1976 Rs.5,000/- was not received. The Division Bench
    has not dealt with the full payment aspect as was done in detail
D   by the learned Single Judge. It was submitted that the omission
    to give details of cause of action was not intentional as held by
                                                                             ~
    the Division Bench.

          7. In response, learned counsel for the respondents
    submitted that the learned Single Judge did not refer to Section
E
    138 of the J & K Act; but the Division Bench has analysed the
    legal position in detail and, therefore, no interference is called
    for.

        8. It was required of the plaintiff to lead as to how the writing
F   came into existence as regards receipt of money. No detail about
    cause of action was mentioned and no date was also indicated
    when the construction was made.                                           If

          9. The only averment of any substance in the plaint read
    as follows:
G
           "That defendants No.1 also purchased the adjoining plot
           of land from the State of Jammu & Kashmir. After
           purchasing his plot, defendant No.1 has constructed his
           house for himself in his plot. When the house of defendant
           No.1 was ready for habitation he started living in the_same.
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    SWARN K. JAIN v. RAVI MAHAJAN AND ORS.                   1035
            [DR. ARIJIT PASAYAT, J.]

     In the process, however, he encroached upon the plot of A
     land of the plaintiff and in due course of time bounded the
     same by a boundary wall. He has since been using it as
     a courtyard. Defendant no.2 to 4 are very close relation of
     defendant No.1 and are living with him. They are also
     using the plot of the plaintiff without his permission. Though B
     defendants No. 2 to 4 wife and sons of defendant No.1,
     yet they are being arrayed as defendants so as to avoid
     any plea by defendant No.1 about their non-joinder.
     That the plaintiff objected to the illegal occupation of the
     land aforesaid by the defendants. He requested the               C
     defendants a number of times to vacate the suit land and
     hand it over to the plaintiff. The defendants, however,              •
     requested the plaintiff to sell the suit land to the defendant
     No.2. The negotiations forthe sale of the suit land, however,
     did not materialize. The illegal occupation by the               D
     defendants over the suit land of the plaintiff, however is
     continuing."
      10. The High Court's finding, as noted above, does not
suffer from any infirmity.
                                                                      E
      11. The Division Bench has elaborately discussed as to
why it came to the conclusion that the omission regarding cause
of action was deliberate and was not inadvertent omission. This
was a case where no interference is called for with the well-
reasoned order of the Division Bench.                                 F
     12. The appeal is dismissed without any order as to costs.
B.B.B.                                       Appeal dismissed.