Srinagar: The High Court of Jammu & Kashmir and Ladakh at Srinagar Monday dismissed a writ petition challenging the eviction of occupants from land “classified as migrant property” in Verinag, Anantnag, holding that an ‘unregistered agreement’ could not confer ownership or lawful possession over property protected under the Jammu and Kashmir Migrant Immovable Property Act, 1997.
Justice Moksha Khajuria Kazmi, in a judgment pronounced today, dismissed a petition filed by Mohammad Iqbal Wani and others against the Union Territory administration and private respondents claiming succession to the migrant owner.
The dispute concerns three kanals and 13 marlas of land falling under Survey Nos. 2275 and 2278 at Estate Bagwanpora, Verinag.
The petitioners claimed that the original owner, Radha Krishen, had borrowed ₹3.60 lakh from their predecessors and, through an agreement dated September 25, 1986, had mortgaged the property with a condition that ownership would pass to the mortgagees if the loan was not repaid.
The petitioners also relied upon a decree dated March 22, 1988, passed by the then Assistant Collector, Agrarian Reforms, Verinag, claiming it supported their rights over the property.
The District Magistrate, Anantnag, had earlier ordered eviction of the occupants under Sections 4 and 5 of the 1997 Act.
The Financial Commissioner, Revenue, subsequently dismissed their appeal on April 30, 2024.
The High Court observed that the petitioners had themselves admitted in earlier litigation that the land was migrant property and that their claim of ownership was based on the 1986 agreement.
The court held that the 1997 Act is special legislation intended to preserve and protect migrant immovable property from illegal occupation, encroachment and distress sale.
Under the Act, the District Magistrate becomes custodia legis—the legal custodian—of migrant property and is empowered to evict unauthorised occupants.
On the 1986 agreement, the court held that the notarised but unregistered document could neither transfer ownership nor establish lawful possession.
It observed that immovable property can be lawfully transferred only through a valid registered conveyance where registration is required.
The court also rejected reliance on revenue entries, observing that such entries are primarily maintained for fiscal purposes and do not by themselves create or extinguish title.
The court held that the Assistant Collector, Agrarian Reforms, had lacked jurisdiction to pass the decree for declaration and permanent injunction.
Consequently, the decree was declared a nullity and void ab initio, or invalid from the beginning.
The court further criticised the petitioners for not producing or relying upon the decree during earlier proceedings and referred to the Supreme Court’s principle that litigants invoking writ jurisdiction must approach the court with clean hands and cannot adopt inconsistent positions.
Finding no perversity in the orders of the District Magistrate and Financial Commissioner, the High Court dismissed the writ petition without costs.
