The Jammu & Kashmir and Ladakh High Court has ruled that when the Petitioners had based their suit for injunction demonstrating their alleged possession in respect of suit land based on an unregistered and insufficiently stamped instrument, which under law does not affect such immovable property, the Petitioners had no prima facie case in their favor.

The Bench of Justice Rajnesh Oswal observed that "a document that is required to be registered under section 17 of the Registration Act but is not registered, cannot affect the immovable property that is the subject matter of such instrument".

Advocate Monika Kohli appeared for the Petitioner and Advocate Jagpaul Singh appeared for the Respondent.

Going by the background of the case, the Petitioners had filed a suit for permanent prohibitory injunction against the Respondents in respect of land situated at Samba District on the ground that the third Respondent being the attorney holder of other Respondents had entered into an agreement to sell with them when a sum of Rs. 3 lacs were already paid to third Respondent and the possession of the land stood delivered to the Petitioner. The Respondents however opposed of execution of any power of attorney exclusively in favour of the third Respondent. It was also pleaded that once the third Respondent claimed to be in possession of the suit land on Feb 13, 2018, then how the Petitioners could claim to be in possession of the suit land on Oct 17, 2018.

The Trial court after considering the pleadings and arguments, restrained the Respondents from alienating and creating any further charge during the pendency of the suit and from dispossessing the Respondents from the suit land till the disposal of the suit. The Appellate Court, however, set aside said order passed by the Trial court holding that an unregistered agreement to sell cannot be used by the Petitioners to protect their possession. Hence, present petition.

After considering the submissions, the High Court found that agreement to sell relied upon by the Petitioners executed between them and the first and second Respondent through the third Respondent, is an unregistered and insufficiently stamped instrument.

Taking note of Section 49 of the Registration Act, 1977 as was applicable in the erstwhile State of Jammu and Kashmir, when the suit for injunction was filed by the Petitioners, the High Court elucidated that once the Petitioners had no prima facie case in their favor, then there was no need to consider the existence of other two trinity principles i.e. Balance of convenience and irreparable loss.

Therefore, the Bench observed that the Appellate Court has not committed any jurisdictional error while setting aside the order passed by Additional Munsiff, Jammu.

Cause Title: Surinder Partap Singh and Anr. v. Vijay Kumar and Ors.

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