Possession Of One Co-Sharer Is Possession Of All: J&K&L High Court

"Agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter." High Court of Jammu & Kashmir and Ladakh, in a significant ruling dated August 21, 2026, held that an unregistered agreement to sell does not confer title or transfer any proprietary interest in immovable property and cannot be weaponized to stall statutory partition proceedings before a revenue officer.

A single-judge bench of Justice Rajnesh Oswal dismissed a second appeal, observing that mere reliance on an unverified agreement to sell does not raise a genuine question of proprietary title under Section 111-A of the Land Revenue Act, while reiterating that in law, the possession of one co-sharer is deemed to be the possession of all co-sharers.

The dispute arose between two real brothers over the partition of ancestral land situated at Village Ajote, Poonch, inherited jointly from their late father. The respondent approached the Tehsildar seeking partition by metes and bounds, which the appellant resisted by claiming that a private partition had already occurred and that the respondent had transferred his share through an agreement to sell. Both the Tehsildar and the Principal District Judge, Poonch, concurrently rejected the appellant’s objections and ordered equal partition, prompting the appellant to prefer a second appeal before the High Court.

The primary substantial question of law before the court was whether the Tehsildar was mandatorily required to adhere to the procedure prescribed under Section 110 of the Land Revenue Act and Rules 12 and 13 of the J&K Partition Rules, 1970, in deciding objections of private partition. The court also examined whether an objection predicated solely upon an agreement to sell necessitated a referral or trial on the question of proprietary title under Section 111-A of the Act.

Scope Of Section 110 And Question Of Title Under Section 111-A

The High Court meticulously analyzed the statutory interplay between Sections 110, 111, and 111-A of the Land Revenue Act. The bench noted that under Section 110, when a co-sharer alleges an existing private partition, the Revenue Officer is required to treat the objection as an application under Section 118 and determine if such partition was in fact made. Justice Oswal clarified that the specialized civil inquiry procedure under Section 111-A is triggered exclusively when a genuine dispute regarding proprietary title is raised.

Agreement To Sell Does Not Create Any Proprietary Right Or Title

Rejecting the appellant's contention that a triable title dispute existed, the court held that the appellant was raising a question of title solely on the foundation of an agreement to sell, in respect of which an earlier mutation had already been set aside by revenue authorities. Relying on the landmark Supreme Court ruling in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana, the court emphasized that an agreement to sell does not satisfy the statutory requirements of Sections 54 and 55 of the Transfer of Property Act, 1882.

The bench further drew support from the Supreme Court's decision in Vinod Infra Developers Ltd. v. Mahaveer Lunia, reaffirming that a transfer of immovable property by sale can only be effectuated through a registered deed of conveyance. Justice Oswal reiterated that an unregistered agreement to sell does not and cannot by itself create or transfer any right, title, or interest in immovable property under Section 54 of the Transfer of Property Act read with Section 17(1)(b) and Section 49 of the Registration Act.

"Thus, it cannot be said that there was any dispute with regard to the title of the property regarding which Tehsildar was required to resort to Section 111-A of the Land Revenue Act."

Absence Of Revenue Entry Belies Plea Of Private Partition

The court scrutinized the revenue records and observed that no entry whatsoever existed to substantiate that the suit land had ever undergone private partition. The bench noted that the appellant's claims were completely unsupported by documentary evidence and that the earlier mutation attested in the appellant's favor stood canceled by the Additional Deputy Commissioner. Finding the claim of private partition to be entirely imaginary, the High Court held that the Tehsildar had fully complied with the mandate of Section 110 of the Land Revenue Act before directing partition.

Possession Of One Co-Sharer Is Possession Of All Co-Sharers

Addressing the appellant's argument that partition proceedings ought to have been suspended under Rule 12 of the J&K Partition Rules because the respondent was allegedly out of possession, the bench firmly rejected the plea. Relying on the Apex Court's decision in T. Ramalingeswara Rao (Dead) Thr. Lrs. v. N. Madhava Rao, the bench held that possession of one co-sharer enures to the benefit of all co-sharers and cannot be treated as adverse possession in the absence of open denial and complete ouster.

The bench also cited the Division Bench ruling in Sukhdev Singh v. State of J&K, noting that Rule 12 of the Partition Rules is intended to apply strictly to persons who have suffered actual dispossession and complete ouster. The court held that once it was factually determined that no private partition had taken place, the mandate of Rule 13 of the Partition Rules became inapplicable, and the Tehsildar committed no statutory infraction in proceeding with the partition application.

"It is a settled principle of law that the possession of one co-sharer is possession of all co-sharers, it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period."

Finding no legal infirmity or procedural lapse in the concurrent findings of the revenue authority and the First Appellate Court, the High Court dismissed the Second Appeal as devoid of merit. The ruling authoritatively settles that co-owners cannot stall statutory revenue partition proceedings by setting up untenable claims of private partition resting upon unregistered agreements to sell.

Date of Decision: 21 August 2026