Srinagar vs Zahoor Ahmad Kambay S/O Mohammad Sultan … on 23 July, 2026

    0
    10
    ADVERTISEMENT

    Jammu & Kashmir High Court – Srinagar Bench

    Srinagar vs Zahoor Ahmad Kambay S/O Mohammad Sultan … on 23 July, 2026

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT SRINAGAR
                           .......
                             LPA no.278/2025
    
                                                   Reserved on: 14.07. 2026
                                                 Pronounced on: 23.07.2026
                                                   Uploaded on: 23.07.2026
    
                                                    Whether the operative part or
                                               full judgment is pronounced: Full
    
       Sabeena Age 42 years D/o Ghulam Ahmad Bhat R/o Sanat Nagar,
       Srinagar
    
                                                           .......Appellant(s)
    
                                     Through: Mr. J.P. Gandhi, Advocate
                                     with Mr. Ajay Singh, Advocate
    
                                  Versus
    
     1. Zahoor Ahmad Kambay S/o Mohammad Sultan Kambay
     2. Ali Mohammad Rather S/o Haji Ghulam Mohammad Rather
     3. Ghulam Ahmad Bhat S/o Haji Sanu ullah Bhat
     4. Haji Mohammad Sidiq Bhat S/o Ghulam Mohammad Bhat
     5. Mohammad Maqbool Ganie S/o Abdul Aziz Ganie
        All Residents of Wakura, District Ganderbal
                                                ......Contesting Respondents
    
     6. UT of J&K through Commissioner/Secretary to Govt. Revenue
        Department, Civil Secretariat, Srinagar/Jammu
     7. Deputy Commissioner, Ganderbal,
     8. Tehsildar, Wakura, Ganderbal
     9. Naib Tehsildar, Wakura, Ganderbal
     10.Patwari Halqa Rakhi Rabitar, Wakura, Ganderbal
     11.Safiya Akhtar W/o Ghulam Ahmad Bhat R/o House no.247,
        Rawalpora, Housing Colony, Bypass, Srinagar
                                                    ....Proforma Respondents
    
    
                                     Through: Mr. G. M. Bhat, Advocate
    
    CORAM:
             HON'BLE THE CHIEF JUSTICE (ACTING)
             HON'BLE MR JUSTICE MOHD YOUSUF WANI, JUDGE
    
                              JUDGEMENT
    

    Page 1
    LPA no.278/2025

    1. This intra court appeal arises from an order and judgement dated 26th

    SPONSORED

    September 2025, passed by learned Single Judge [“Writ Court”] in

    CM(M) no.276/2023 titled ‘Zahoor Ahmad Kambay and others v.

    Sabeena and others‘, whereby the Writ Court has set-aside the Award

    dated 6th December 2014, passed by the National Lok Adalat and

    restored the suit titled Sabeena v. State and others, to its original

    number to the Trial court. The Writ Court has also impleaded

    respondents 1 to 5 herein (contesting respondents) as party defendants

    in the said suits. The Writ Court has further clarified that nothing said

    in the judgement impugned would be deemed to be an expression of

    any opinion qua the claim of either of the parties and the suit shall be

    dealt with by the Trial Court in accordance with law.

    2. Briefly stated, the facts leading to filing of the instant appeal as narrated

    in the judgement impugned are that contesting respondents, having no

    direct interest in the suit property, i.e., land measuring 147 Kanals and

    04 Marlas falling under Survey no.495/405 situate at Mouza Rakhi

    Rabitar Tehsil Lar District Ganderbal (hereinafter referred to as

    “subject land”), filed CM(M) no.276/2023 in representative capacity

    for seeking setting-aside of the Lok Adalat Award bearing no.154 dated

    6th December 2014 titled Sabeena v. State and others. The award of Lok

    Adalat, whereby appellant was declared owner of subject land, was

    assailed by contesting respondents on the ground that same had been

    obtained by appellant in collusion and after playing fraud with the

    process of law. It was pleaded by contesting respondents herein that a

    suit was filed by appellant for declaration and mandatory injunction

    against respondents 6 to 11 on the basis of an agreement to sell dated

    Page 2
    LPA no.278/2025
    15th July 2010, qua the subject land executed in her favour by one

    Sansar Singh adopted son of Late Gen. Bagh Singh resident of

    Raghunathpora, Jammu through his attorney holder, namely, Safia

    Akhter, arrayed as respondent no.11 in this appeal.

    3. The suit was apparently collusive in nature and, therefore, the attorney

    of alleged owner of subject land, namely, Sansar Singh, was alone

    arrayed as party defendant in the suit. The suit was not contested rather

    the claim made by appellant herein was admitted. The matter was,

    however, settled in National Lok Adalat organized by District Legal

    Services Authority on 6th December 2014. In terms of the Award passed

    by Lok Adalat, the appellant was declared owner in possession of

    subject land on the basis of admission made by her mother, namely,

    Safia Akhter (respondent no.11 herein) on the basis of power of

    attorney obtained by her from alleged owner, namely, Sansar Singh.

    4. Since the subject matter of the suit and the award dated 6 th December

    2014 passed by National Lok Adalat, Ganderbal, was a big chunk of

    land measuring more than 147 Kanals and could have been possibly put

    to use for public purpose, the contesting respondents approached this

    Court by seeking permission to file the petition in representative

    capacity and threw challenge to the award in CM(M) no.276/2023. The

    petition was contested by appellant herein. The Writ Court, having

    considered the petition along with WP(C) no.236/2024, came to the

    conclusion that the award passed by National Lok Adalat, Ganderbal,

    dated 6th December 2024, declaring appellant owner in possession of

    subject land, was collusive and against public policy and, therefore,

    untenable in law. Consequently, the Writ Court set-aside the award and

    Page 3
    LPA no.278/2025
    restored the suit to its original number before the Trial Court. The

    contesting respondents (writ petitioners) were impleaded as party

    defendants in the suit filed by appellant.

    5. Feeling aggrieved, the appellant is before us and has challenged the

    impugned judgement of the Writ Court on multiple grounds. The one

    ground of challenge that is vehemently urged by Mr. J. P. Gandhi,

    learned counsel appearing for appellant, is that contesting respondents,

    who filed the petition before the Writ Court, have no right, title or

    concern with the subject land and, therefore, lack locus standi. It is

    contended that the Writ Court, without going through this aspect of the

    matter, permitted the contesting respondents to file the petition in

    representative capacity and interfered with Lok Adalat award passed

    inter se appellant and proforma respondents. It is also the contention of

    Mr. Gandhi that Lok Adalat award, which is always passed with the

    consent of parties, is not appealable nor can it be assailed by invoking

    Article 226 or 227 of the Constitution of India.

    6. Having heard learned counsel for parties and perused the material on

    record, we are of the considered opinion that the judgement impugned

    passed by the Writ Court suffers from no legal or factual error.

    7. The controversy started with the appellant filing a civil suit for

    declaration and consequential relief of mandatory injunction against

    respondents. To put it straight, the proforma respondents 6 to 10

    (defendants 1 to 5 in the suit are officials of Revenue Department),

    whereas proforma respondent no.11 (defendant no.6 in the suit) is

    mother of appellant (plaintiff). The declaration was sought on the basis

    of title allegedly acquired by appellant on the edifice of sale agreement

    Page 4
    LPA no.278/2025
    executed by Mr. Sansar Singh on 15th July 2010 in favour of appellant

    and one Mst. Syed Yasmeen. The agreement to sell was with respect to

    the entire subject matter.

    8. Indisputably, no sale deed was ever executed by Mr. Sansar Singh till

    filing of the suit in the year 2014 or thereafter. From the frame of the

    suit filed by appellant, it is abundantly clear that no prayer was made

    by appellant for specific performance of contract as was perhaps the

    remedy available to appellant.

    9. Interestingly, even the proposed vendor, Mr. Sansar Singh, was not

    arrayed as party defendant in the suit. The appellant, very cleverly and

    with a view to play fraud, impleaded Ms. Safia Akhter as contesting

    defendant along with the official defendants on the strength of power

    of attorney allegedly executed by Sansar Singh in her favour. This

    power of attorney dated 15th July 2010, as it comes out from its reading,

    was only in respect of land measuring 129 Kanals and 01 Marla. Be that

    as it may, it seems that Safia Akhter was in collusion with appellant

    and, therefore, chose not to contest the suit. The suit was, however,

    given quietus by National Lok Adalat in terms of its award dated 6 th

    December 2014. The National Lok Adalat, without appreciating that

    the suit for declaration and mandatory injunction on the basis of

    agreement to sell, could not have become the basis of transferring a

    huge chunk of land measuring more than 147 Kanals, that too, without

    execution of any sale deed and without payment of requisite stamp

    duty. It did not realize that the suit was collusive in nature and aimed at

    defeating the provisions of the Transfer of Property Act, the

    Registration Act and the Stamp Duty Act, and that such a suit, being

    Page 5
    LPA no.278/2025
    opposed to the public policy, could not have been decreed. The National

    Lok Adalat did not even bother to find out as to whether the proposed

    vendor, named as Mr. Sansar Singh was dead or alive.

    10.We are in complete agreement with the Writ Court that the legal

    position is well settled that any contract of sale (agreement to sell),

    which is not a registered deed of conveyance, would fall short of

    requirements of Section 54 and 55 of the Transfer of Property Act and

    that mere agreement to sell would not confer any title or transfer any

    interest in immoveable property.

    11.The settled legal position enunciated by the Hon’ble Supreme Court

    and various High Courts is not debatable. If a compromise merely

    recognizes or declares pre-existing rights of a party in a property, that

    is already subject matter of a suit, no registration or stamp duty is

    required under Section 17 (2)(vi) of the Registration Act and the Lok

    Adalat award/decree passed upon such suit would, of course, be valid

    and enforceable. However, if the compromise between the parties

    creates a new right for the first time or is effectively a sale or transfer

    of property from one person to another without there being any pre-

    existing right, the decree cannot be permitted to be used to avoid stamp

    duty and registration. Therefore, if the Lok Adalat award is used as a

    substitute for the sale deed to transfer ownership of immoveable

    property from one person to another, the decree would be hit by Section

    23 of the Contract Act and would be void. Similarly, an award, which

    is collusive or fraudulent and is intended to evade the stamp duty and

    registration requirements, it would be opposed to public policy and

    cannot be legally enforceable.

    Page 6
    LPA no.278/2025

    12.In Ramchandra Ganpat Shinde and another v. State of Maharashtra and

    others, (1993) 4 SCC 216, the Hon’ble Supreme Court once again had

    an occasion to deal with the question of collusion in judicial

    proceedings. Placing reliance upon Nagubai Ammal v. B. Shama Rao,

    AIR 1956 SC 593, the Hon’ble Supreme Court in paragraph 09 held

    thus:-

    “9. In Nagubai Ammal and ors. v. B. Shamma Rao and ors.
    (1956) SCR 451 at 463, this Court held that collusion in
    judicial proceedings is a secret arrangement between two
    person that the one should institute a suit against the other in
    order to obtain the decision of a judicial tribunal for some
    sinister purpose. In such a proceedings, the claim put forward
    is fictitious, the contest over it is unreal, and the decree passed
    therein is a mere mask having the similitude of a judicial
    determination and worn by the parties with the object of
    confounding third parties. This was reiterated in Roop Chand
    Gupta v. Raghuvanshi Pvt. Ltd. and Anr.
    (1964) 7 SCR 761
    at 763, in which this Court held that the collusion is an
    improper act done by an improper refraining from doing an
    act, for a dishonest purpose. In these two cases this Court set
    aside the collusive decree obtained by the parties. Collusion,
    thus, is a foundation to put forward a format of judicial
    process and a pretext of contest which in effect is unreal and
    a force and the decree or order obtained on its basis is a mere
    mask having similitude of judicial determination with the
    object of confounding third parties. The offending order is
    vitiated by collusion and formed foundation for election to the
    committee of the society.”

    13. Admittedly, in the instant case, the only suit which could have been

    filed by appellant on the strength of agreement to sell could have been

    a suit for specific performance of contract or in the alternative for

    damages compensation. Such a suit could have been filed only against

    proposed vendor, i.e., Sansar Singh in the present case. The suit for

    declaration and mandatory injunction was apparently filed by appellant,

    by arraying the alleged power of attorney of Sansar Singh only, with a

    Page 7
    LPA no.278/2025
    view to avoid payment of stamp duty and requirements of Registration

    Act.

    14. We have serious doubts whether on the date of filing of the suit, the

    proposed vendor shown in the agreement to sell, namely, Sansar Singh,

    was alive or dead. The suit directly against power of attorney without

    arraying the proposed vendor was itself not maintainable.

    Unfortunately, the National Lok Adalat failed to consider this important

    aspect of the matter and hurriedly passed the award by merely taking

    note of the fact that two opposite parties had entered into compromise.

    It needs no reiteration to say that whether it is civil court or Lok Adalat,

    a decree, which is opposed to the public policy and ratifies a fraud,

    cannot be passed. Reckless passing of such decrees by Lok Adalats and

    by some civil courts, have the effect of defrauding the public exchequer

    immensely. By this machination, several landed properties have been

    transferred from one person to another without execution of sale deeds,

    without complying with the Registration Act and payment of stamp

    duty, and the collusive decrees have been passed and, on the basis,

    thereof mutations have been attested by revenue officers.

    15.Having said that we are of the considered opinion that the judgement

    impugned passed by the Writ Court deserves to be upheld to the extent

    it declares the award of National Lok Adalat dated 6 th December 2014

    null and void.

    16.We, however, are not inclined to uphold the impugned judgement to the

    extent of directing the impleadment of contesting respondents (writ

    petitioners) as party defendants in the suit filed by appellant. We,

    however, leave it to the contesting respondents to approach the Trial

    Page 8
    LPA no.278/2025
    Court and file an appropriate application for impleadment, which if

    filed shall be considered and disposed of by the Trial Court on its merits

    and after affording opportunity to contest the same to the appellant

    herein. With a slight modification as aforesaid, the judgement

    impugned is upheld and the appeal disposed of accordingly.

    17.Disposed of.

                              (Mohd Yousuf Wani)               (Sanjeev Kumar)
                                           Judge             Chief Justice (Acting)
    Srinagar
    23.07.2026
    Ajaz Ahmad, Secy
                              Whether approved for reporting? Yes/No
    
    
    
    
                                        Page 9
                                                                   LPA no.278/2025
     



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here