NAZIR AHMAD MIR AND ORS. vs ISHFAQ AHMAD MIR AND ORS. (REVENUE DEPARTMENT)

HIGH COURT OF JAMMU &KASHMIR AND LADAKH AT
SRINAGAR
Reserved on: 18.04.2026
Pronounced on: 30.04.2026
Uploaded on: 30 .04.2026
Whether the operative part or
full judgment is pronounced:
Full
RFA No.60/2024
NAZIR AHMAD MIR & ORS. ...PETITIONER(S)/APPELLANT
Through: - Mr. Manzoor Ahmad Dar, Advocate, with
Mr. Javaid Ahmad, Advocate.
Mr. Luqman Ahmad Dar, Advocate.
Vs.
…RESPONDENT(S)
ISHFAQ AHMAD MIR & ORS.
Through: - Mr. Jahangir Iqbal Ganai, Sr. Advocate
with Mr. Firdous Ahmad, Advocate
Ms. Gousia Jan, Advocate.
CORAM:
HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The appellants have challenged order/judgment dated
st
31-07-2024 passed by the learned 1 Additional District
Srinagar (hereinafter referred to as the “trial court”), whereby
application of respondent No.1/defendant No.1 under Order
VII Rule 11 of the Civil Procedure Code has been allowed and
the plaint filed by the appellants/plaintiffs before the trial
court has been rejected.
2) The facts leading to the filing of the present appeal are
that the appellants filed a suit for declaration and injunction
against the respondents before the learned trial court. In the

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plaint it was alleged there that the predecessor-in-interest of
plaintiff No.1, namely, Late Haji Mohammad Jamal Mir, had
left behind estate comprising residential/commercial
structures and landed property situated at various places of
Union Territory of Jammu and Kashmir. It was further
pleaded that an award dated 03.07.1971 came to be passed
by the Arbitrator, Shri Omkar Nath Tiku, whereby
mechanism for apportionment and partition of the properties
left behind by Late Haji Mohammad Jamal Mir was provided.
The award passed by the learned Arbitrator was made Rule
of the Court and a decree in terms of the award was passed,
whereafter the property left behind by late Haji Muhammad
Jamal Mir was distributed amongst his legal heirs. The
estate, including the residential structures comprising land
measuring 47 kanals, 9½ situated at Nandpora, Nigeen,
Srinagar, was also apportioned in favour of the beneficiaries
of the arbitral award.
3) The plaintiffs further pleaded that pursuant to the
passing of the arbitral award, which pertained to the land
situated at Nandpora, Nigeen, as well, the said land came to
be partitioned privately, whereafter plaintiff No.1 took over
possession of his share of the land as also the residential
house and the land underneath and appurtenant thereto
that had already been gifted in his favour. According to the

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plaintiffs, the land in the adjoining vicinity to the share of
plaintiff, had fallen to the share of the father of defendants
No.1 and 2 and husband of defendant No.3. It was pleaded
that the predecessor-in-interest of defendants No.1 to 3 did
not show any inclination to occupy and put the same to use,
thereby abandoning the same. This, according to the
plaintiffs, exposed the land which had fallen to their share,
to trespass and damage, as a consequence whereof, they
enclosed the portion of land that had fallen to the share of
predecessor-in-interest of defendants No.1 to 3 by fencing it
around in the year 1985 and 1986. It was pleaded that since
then the said portion of the land is in continuous,
uninterrupted and peaceful possession of plaintiff No.1. It
was also pleaded that the predecessor-in-interest of
defendants No.1 to 3 and thereafter the said defendants
never raised any objection to the continuous and
uninterrupted possession of the plaintiffs, which has
matured into adverse possession in the year 1994.
4) It was further pleaded that the plaintiffs are enjoying
peaceful, open, continuous, hostile and clear possession of
the said parcel of land to the knowledge of predecessor-in-
interest of defendants No.1 to 3 and thereafter to the
knowledge of said defendants. It was further pleaded that the
predecessor-in-interest of defendants No.1 to 3, even after

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passing of the arbitral award in the year 1971, never opted
to have physical or constructive possession of the land which
had fallen to his share.
5) It was further pleaded by the plaintiffs that after all
these years, defendants No.1 to 3 have woken up from deep
slumber and have started making claims over the suit land
by resorting to filing of an application before the Divisional
Commissioner, Kashmir, seeking partition of the land in
question. It was pleaded that under the directions of the
Divisional Commissioner and Assistant Commissioner, the
Tehsildar (defendant No.7) has proceeded to direct his
subordinate revenue officials to effect demarcation of the
land in question. This action of the revenue officials,
according to the plaintiffs, is without jurisdiction. It was
further pleaded that defendants No.1 to 3 cannot defeat the
ownership/title of the plaintiffs on the strength of adverse
possession by filing an application seeking partition,
particularly when the land in question has already been
partitioned way back in the year 1982 after passing of the
arbitral award. The plaintiffs also pleaded that the
defendants are using extra-judicial means to dispossess
them from the suit land.
6) On the basis of the aforesaid pleadings, the plaintiffs
sought a declaration that they may be declared as owners of

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land measuring 11 kanals 9 marlas and 147 sft. Falling
under Survey Nos.744-min, 746-min, 747-min,748-min,
749-min,750-min, 751, 752-min, 753-min, 754-min, 755-
min, 756-min, 758-min, 759-min, 760-min, 786-min, 789-
min, 774-min and 775-min together with structures existing
thereupon situated at Village Nandpora Nigeen, Hazratbal,
Srinagar, on the strength of adverse possession. A further
declaration that the impugned communication dated
28.01.2023 issued by defendant No.4 providing for partition
of the suit property, is invalid and legally not binding upon
the plaintiffs, with a further declaration that the
consequential action taken by defendants No.5 and 6 on the
basis of the order issued by defendant No.4, is null and void
not binding upon the plaintiffs, has also been sought.
Besides, the plaintiffs have sought a decree of permanent
prohibitory injunction against defendants No.1 to 3
restraining them from causing any interference in the
peaceful possession of the plaintiffs over the suit land.
7) Defendants No.1 to 3, besides filing their written
statement, also filed an application under Order 7 Rule 11
of CPC before the learned trial court. In their application
under Order VII Rule 11 CPC, it was contended that the
plaint does not disclose any cause of action. It was further
contended that in the plaint, the plaintiffs have admitted

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that defendants No.1 to 3 are co-owners of the suit property
and in the absence of any pleading with regard to ouster or
exclusion of defendants No.1 to 3, the plaintiffs cannot claim
title by virtue of adverse possession. It was also contended
that the plaintiffs have not pleaded the act of hostile
possession, not to talk of exact date of hostile possession in
the plaint. It was contended that in law, possession of one
co-owner is deemed to be the possession of all co-owners, as
such, there is no question of adverse possession. The
defendants have also contended that the plaintiffs have not
pleaded the essential requisites of adverse possession in the
plaint, as such, the same does not disclose any cause of
action.
8) The learned trial court, after analyzing the contents of
the plaint and after hearing the parties, came to the
conclusion that the plaintiffs have failed to establish any
cause of action that would give them right to claim adverse
possession over the suit property. It has been observed by
the learned trial court that the parties to the suit are co-
owners and that the plaintiffs have not pleaded ouster of the
defendants from the suit property. Accordingly, vide
impugned order dated 31.07.2024, the trial court has
rejected the plaint.

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9) The appellants have challenged the impugned order on
the grounds that the learned trial court has ignored the vital
aspects of the matter, inasmuch as the plaintiffs have in
clear cut terms pleaded that they are in exclusive possession
and enjoyment of the suit land to the knowledge of
defendants 1 to 3 and to their exclusion. It has been further
contended that the plea of adverse possession is a question
of fact and law and without permitting the parties to go to
trial, it was not open to the learned trial court to reject the
plaint. It has been further contended that the averments
made in the plaint clearly disclose cause of action in favour
of the plaintiffs, as such, the impugned order is liable to be
set aside.
10) I have heard counsel for the parties and perused record
of the case.
11) The legal position with regard to rejection of plaint is
well settled. A plaint can be rejected in terms of Order VII
Rule 11(a) of Civil Procedure code by the court if it does not
disclose cause of action. Without a cause of action, a civil
suit cannot be entertained. A cause of action means every
fact which, if traversed, it would be necessary for the plaintiff
to prove in order to support his right to judgment. In order
to ascertain whether the averments made in the plaint
disclose a cause of action, a court has only to consider the

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averments made in the plaint and not the contentions raised
in the written statement or in any other ancillary
proceedings. However, when a plaintiff also relies upon
documents annexed to the plaint or filed along with the
plaint, having regard to the provisions contained in Order VII
Rule 14 of the Code of Civil Procedure, those documents are
required to be taken into consideration for the purpose of
disposal of an application under Order VII rule 11(a) of the
Code of Civil Procedure. If it is shown from the averments
made in the plaint and the documents relied upon by the
plaintiff, which are to be taken as true at their face value,
that the plaintiff would be entitled to a decree as prayed in
the suit, the plea of a defendant for rejection of the plaint
has to be turned down. While dealing with an application
under Order VII Rule 11 (a) of the Code of Civil Procedure,
the courts have to determine whether the plaint discloses a
cause of action by carefully scrutinizing the averments made
in the plaint together with the documents relied upon by the
plaintiffs.
12) With the aforesaid legal position in mind, let us now
scrutinize the averments made in the plaint in order to
ascertain whether the same discloses any cause of action in
favour of the plaintiffs. The main contention, on the basis of
which the defendants are seeking rejection of the plaint, is

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that in the plaint the plaintiffs have admitted that the suit
property is joint and unpartitioned, as such, there is no
question of claiming title by adverse possession by the
plaintiffs.
13) Learned Senior Counsel appearing for the
defendants/respondents has drawn attention of this Court
to award of Arbitrator, particularly its contents relating to
land situated at Nandpora Nigeen, Srinagar. It has been
submitted that as per the award of the Arbitrator, it was not
possible for the Arbitrator to divide the suit land by metes
and bounds and it was suggested by the Arbitrator that the
same can be done by the revenue authorities after looking
into Khasra numbers. It has been submitted that after the
award of the Arbitrator was made rule of the court, the land
situated at Nandpora Nigeen, Srinagar, was never subjected
to partition by any revenue authority. Therefore, the same
continued to be the joint holding of the parties. Once it is
shown that the suit property is joint and unpartitioned
holding of the parties, even if the plaintiffs are in possession
of the same, in law the defendants No.1 to 3, being the joint
owners of the suit property, can deemed to be in constructive
possession of the suit property. Thus, the plea of adverse
possession projected by the plaintiffs is bound to fail even
without trial.

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14) The argument raised by the learned Senior Counsel
appearing for respondents No.1 to 3, at its first blush,
appears to be attractive but when the award of the Arbitrator
is analysed closely, it comes to the fore that even though the
Arbitrator has suggested to the parties to get the land
situated at Nandpora Nigeen, Srinagar, partitioned by the
revenue authorities, the learned Arbitrator has proceeded to
determine the shares of the parties in respect of the suit land
giving an option to them to approach the revenue authorities
for partition thereof. This does not mean that the partition of
the suit property in accordance with the shares provided
under the award of the Arbitrator could not have been
effected by the parties privately without the assistance of the
revenue authorities.
15)
The plaintiffs, in para (4) of their plaint, have
specifically pleaded that the land situated at Nandpora
Nigeen, Srinagar, came to be partitioned privately. The issue
whether the parties partitioned the suit land privately
without the help of revenue authorities is factual in nature.
The arbitral award nowhere rules out the partition of the suit
property without the assistance of revenue authorities. Once
the plaintiffs have pleaded that the partition of the suit
property came be affected by the parties privately pursuant
to the award of the Arbitrator, they have to be given a chance

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to prove this fact by leading evidence. The learned trial court,
therefore, could not have presumed that the suit land is still
joint holding of the parties at this stage without there being
any trial with regard to the issue whether there was any
private partition of the property pursuant to the award
passed by the Arbitrator. Once the question as to the status
of the suit property, whether it was joint holding or
partitioned, becomes a triable issue, the plaint could not
have been rejected under Order VII Rule 11 of the Code of
Civil Procedure.
16) So far as the pleadings of the plaintiffs with regard to
adverse possession of the portion of the joint holding which
had come to the share of defendants No.1 to 3, are
concerned, a perusal of the plaint would reveal that the
plaintiffs have clearly pleaded that for the last more than 40
years they are enjoying peaceful, continuous, open, hostile
and clear possession of the land in question to the knowledge
of the predecessor-in-interest of defendants No.1 to 3 as also
to the knowledge of said defendants. It has also been pleaded
that the plaintiffs have enclosed the land in question by
fencing in the year 1985-1986 and the same has been in
their uninterrupted and peaceful possession since then.
According to the plaintiffs, they are in uninterrupted

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possession of the suit land since 1982 and their possession
has matured into adverse possession in the year 1994.
17) If the plaintiffs succeed in showing that a private
partition in respect of the suit land had taken place and it
ceased to be the joint holding of the parties, it is open to
them to plead adverse possession in respect of the same. The
learned trial court, while rejecting the plaint by observing
that the plaintiffs cannot claim adverse possession over the
suit land as the same is a joint holding, has fallen into a
grave error because it has ignored the pleadings with regard
to private partition in respect of the suit land.
18) Apart from the above, even if it is assumed that the
plaintiffs cannot claim adverse possession in respect of the
suit property, still then they are certainly well within their
rights to claim a decree of permanent prohibitory injunction
against defendants No.1 to 3 in respect of the suit land as,
admittedly, the same is in their possession. They are entitled
to protect their possession from defendants No.1 to 3 by
means other than sanctioned by law. To that extent, even if
the case of defendants No.1 to 3 is accepted, the plaintiffs
can maintain the suit. It is a settled law that a plaint cannot
be rejected partially. Reference in this regard can be made to
the judgment of the Supreme Court in the case of Kum.

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Geetha v. Nanjundaswamy and others (2024) 14 SCC 390.
In the said case, the Supreme Court has, after relying upon
the principles explained in the case of Sejal Glass Ltd. v.
Navilan Merchants, (2018) 11 SCC 780, followed by
Madhav Prasad Aggarwal v. Axis Bank Ltd . (2019) 7 SCC
158, held that a plaint cannot be rejected in part. On this
ground also, the impugned order passed by the learned trial
court is not sustainable in law.
19) For what has been discussed hereinbefore, the appeal
is allowed and the impugned order passed by the learned
trial court is set aside. The case is remanded to the learned
trial court with the direction to frame issues on the basis of
the pleadings of the parties and proceed further in the matter
in accordance with law.
20)
A copy of this judgment be sent to the learned trial
court for information and compliance.
(Sanjay Dhar)
Judge
SRINAGAR
30.04.2026
“Bhat Altaf-Secy”

Whether the judgment is reportable: YES/NO





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