Court Rules that Suit Land is Properly Described and Plaintiff's Claim Based on Adverse Possession Does Not Contradict Earlier Agreement to Sell
In a significant decision dated October 7, 2026, the Jammu & Kashmir and Ladakh High Court dismissed a civil revision petition challenging the maintainability of a suit involving ownership and possession of land in Village Mooni, Tehsil Billawar. The suit was originally filed by Bhagata alias Bhagat Ram seeking a declaration of exclusive ownership and possession of a 4 kanal and 1 marla parcel of land identified by khasra numbers 360 min, 362 min, 368 min, and 370 min.
The respondent/plaintiff claimed possession based on adverse possession, stating that he had been in continuous and hostile possession since March 12, 1991. He referenced an earlier agreement to sell dated March 12, 1991, pursuant to which the predecessor-in-interest of the defendants had transferred land measuring 24 kanals and 6 marlas, including the suit land, to him after full consideration was paid. Although a sale deed was executed for 20 kanals and 5 marlas in 2007, the defendants did not execute the sale deed for their share covering the suit land. The plaintiff's claim rested solely on adverse possession and not on the agreement to sell.
The defendants/petitioners contested the suit's maintainability on two grounds: first, that the suit land was not properly specified and described as required under Order VII Rule 3 of the Code of Civil Procedure, 1908 (CPC), and second, that the plaintiff's claim based on adverse possession contradicted his earlier claim based on the agreement to sell, rendering the suit non-maintainable.
The trial court framed two preliminary issues: (a) whether the suit was maintainable under the CPC, and (b) whether the suit land was properly described. The court ruled in favor of the plaintiff on both issues, holding that the suit was maintainable and the description of the land was sufficient.
On appeal, the High Court analyzed the maintainability issue and clarified that under Section 9 of the CPC, civil courts have jurisdiction over all suits except those expressly or impliedly barred. Since the defendants raised the objection to maintainability, the burden of proof lay with them to establish it. The court noted an error in the trial court's framing of the issue related to the onus of proof but held that no prejudice was caused as the onus was correctly applied against the defendants.
Regarding the alleged contradiction in pleadings, the High Court observed that the plaintiff's reference to the agreement to sell was only to explain how he entered into possession and did not amount to asserting ownership based on that agreement. His primary claim was based on adverse possession, which is not inconsistent with the initial entry into possession. Hence, the suit could not be dismissed on grounds of contradictory claims.
On the description of the suit land, the court found the plaint compliant with Order VII Rule 3 CPC as it contained the khasra numbers, measurements, khewat, and khata numbers sufficient to identify the property.
The court concluded that the trial court's decision to hold the suit maintainable and the property description adequate was justified. There were no grounds for interference in the revisional jurisdiction, leading to dismissal of the petition.
This ruling reinforces the principle that civil courts have broad jurisdiction and that objections to maintainability must be substantiated by defendants. It also clarifies that claims based on adverse possession can coexist with references to agreements to sell without rendering the suit untenable. Furthermore, detailed descriptions of immovable property by khasra and other survey records satisfy procedural requirements under the CPC.
Bottom Line:
Civil Procedure Code, 1908 - Preliminary issue as to maintainability of suit can be decided on basis of plaint averments where no evidence is required - Burden to prove objection regarding non-maintainability lies on defendant who raises it - Reference to agreement to sell only to explain nature of possession does not amount to taking contradictory plea when declaration is sought on basis of adverse possession - Description of suit land by khasra numbers, measurement, khewat and khata numbers satisfies Order VII Rule 3 CPC.
Statutory provision(s):
Section 9, Civil Procedure Code, 1908; Order VII Rule 3, Civil Procedure Code, 1908
Tara Chand v. Bhagata Alias Bhagat Ram, (J&K and Ladakh) : Law Finder Doc Id # 2995524
