J&K High Court Sets Aside Plaint Rejection, Holds Private Partition and Adverse Possession Are Triable Issues
Justice Sanjay Dhar restored a suit over land at Nandpora Nigeen, Srinagar, finding that whether a private partition occurred after a 1971 arbitral award is a question of fact requiring trial, and that a plaint cannot be rejected in part.
The High Court of Jammu & Kashmir and Ladakh at Srinagar has set aside an order by which the 1st Additional District Judge, Srinagar, rejected a plaint filed by Nazir Ahmad Mir and others in a suit for declaration and injunction. Justice Sanjay Dhar, sitting singly, held that the trial court fell into grave error by treating the suit land as a joint and unpartitioned holding without first allowing the plaintiffs to prove their plea of private partition. The court also held that even if adverse possession failed entirely, the plaintiffs retained a maintainable claim for permanent prohibitory injunction, and that a plaint cannot be rejected in part. The case is remanded for framing of issues and trial.
The Suit and the Dispute Over Nandpora Nigeen Land
The appellants — plaintiffs before the trial court — traced their claim to an estate left behind by Late Haji Mohammad Jamal Mir. An arbitral award dated 3 July 1971, passed by Arbitrator Shri Omkar Nath Tiku, provided for apportionment and partition of the estate. The award was made a rule of court and a decree followed. The estate included residential and commercial structures and landed property across the Union Territory of Jammu and Kashmir, among them land measuring 47 kanals 9½ marlas at Nandpora, Nigeen, Srinagar.
The plaintiffs pleaded that after the arbitral award, the Nandpora Nigeen land was partitioned privately. Plaintiff No. 1 took possession of his share, including a residential house and the land underneath. The share that fell to the father of defendants No. 1 and 2 — and husband of defendant No. 3 — was, according to the plaintiffs, left unoccupied and effectively abandoned. The plaintiffs said they fenced that portion in 1985 and 1986 to protect their own adjacent share from trespass, and have since been in continuous, uninterrupted, open, and hostile possession of it. They pleaded that this possession matured into adverse possession in 1994.
Decades later, defendants No. 1 to 3 filed an application before the Divisional Commissioner, Kashmir, seeking partition of the land. Under directions from the Divisional Commissioner and the Assistant Commissioner, the Tehsildar (defendant No. 7) directed revenue officials to carry out demarcation. The plaintiffs challenged this as without jurisdiction and filed the suit seeking: a declaration of ownership over land measuring 11 kanals 9 marlas and 147 square feet falling under multiple survey numbers at Village Nandpora Nigeen, Hazratbal, Srinagar, on the strength of adverse possession; a declaration that a communication dated 28 January 2023 issued by defendant No. 4 providing for partition is invalid; and a permanent prohibitory injunction against defendants No. 1 to 3.
The Trial Court's Rejection Under Order VII Rule 11
Defendants No. 1 to 3 filed a written statement and also moved an application under Order VII Rule 11 of the Code of Civil Procedure before the trial court, contending that the plaint disclosed no cause of action. Their argument was that the plaintiffs had themselves admitted in the plaint that defendants No. 1 to 3 are co-owners of the suit property. In the absence of any pleading of ouster or exclusion of the co-owners, they argued, adverse possession cannot be claimed. They also contended that the plaintiffs had not pleaded the essential ingredients of hostile possession, including the exact date on which hostile possession commenced. In law, they argued, possession of one co-owner is deemed to be possession of all co-owners.
The 1st Additional District Judge, Srinagar, accepted this reasoning. By order dated 31 July 2024, the trial court held that the plaintiffs had failed to establish any cause of action entitling them to claim adverse possession over the suit property, and that the parties were co-owners with no pleading of ouster. The plaint was rejected.
The Arbitral Award and the Question of Private Partition
Before the High Court, the senior counsel for the respondents drew attention to the contents of the arbitral award as it related to the Nandpora Nigeen land. The submission was that the Arbitrator himself had noted it was not possible to divide that land by metes and bounds and had suggested that partition be effected by the revenue authorities after examining the Khasra numbers. Since no revenue authority ever partitioned the land after the award was made a rule of court, the argument ran, the land remained a joint holding. Once it is a joint holding, even physical possession by one co-owner amounts in law to constructive possession by all, making adverse possession impossible without trial.
Justice Dhar acknowledged that this argument had initial appeal, but rejected it on a close reading of the award. The Arbitrator had determined the shares of the parties and given them the option to approach revenue authorities for partition. That suggestion did not rule out a private partition between the parties without revenue authority assistance. The plaintiffs had specifically pleaded in paragraph 4 of the plaint that the Nandpora Nigeen land was partitioned privately pursuant to the award. Whether that private partition actually took place is a question of fact. The arbitral award nowhere excluded the possibility of private partition.
The court held that once the plaintiffs pleaded a private partition, they were entitled to lead evidence to prove it. The trial court could not presume, at the stage of an Order VII Rule 11 application, that the land remained a joint holding. The question of whether the suit property was joint or partitioned was a triable issue, and the plaint could not be rejected on that basis.
Adverse Possession Pleadings Examined
Justice Dhar also examined the adverse possession pleadings in the plaint. The plaintiffs had pleaded that for more than 40 years they have been in peaceful, continuous, open, hostile, and clear possession of the land to the knowledge of the predecessor-in-interest of defendants No. 1 to 3 and thereafter to the knowledge of those defendants. They pleaded that the land was fenced in 1985–1986, that possession has been uninterrupted since 1982, and that it matured into adverse possession in 1994.
The court held that if the plaintiffs succeed in establishing that a private partition took place and the land ceased to be a joint holding, they are entitled to plead adverse possession over the portion that had fallen to the share of the defendants' predecessor. The trial court's error was in ignoring the private partition pleading entirely and proceeding on the assumption that the land was still joint property.
A Plaint Cannot Be Rejected in Part
Justice Dhar identified a further, independent ground for setting aside the rejection. Even accepting entirely the defendants' case that adverse possession cannot be claimed over joint property, the plaintiffs still had a maintainable claim for permanent prohibitory injunction. The suit land is admittedly in the possession of the plaintiffs. They are entitled to protect that possession against interference by defendants No. 1 to 3 through means sanctioned by law. That relief survives regardless of the fate of the adverse possession claim.
The court referred to the Supreme Court's judgment in Kum. Geetha v. Nanjundaswamy and others, (2024) 14 SCC 390, which itself relied on Sejal Glass Ltd. v. Navilan Merchants, (2018) 11 SCC 780, and Madhav Prasad Aggarwal v. Axis Bank Ltd., (2019) 7 SCC 158, for the settled proposition that “a plaint cannot be rejected in part.” Since at least the injunction claim was maintainable, the plaint as a whole could not have been rejected under Order VII Rule 11.
Order
Justice Sanjay Dhar allowed RFA No. 60/2024 and set aside the order dated 31 July 2024 passed by the 1st Additional District Judge, Srinagar. The case is remanded to the trial court with a direction to frame issues on the basis of the pleadings of the parties and proceed further in accordance with law. A copy of the judgment is to be sent to the trial court for information and compliance. The judgment was pronounced on 30 April 2026 and is marked reportable.