GULLA PARREY Vs. RAMA PARREY

JUDGEMENT

(1.) This civil second appeal is directed against the judgment and decree passed by learned District Judge, Pulwama, on Dec. 1, 1986, dismissing the suit filed by respondent for declaration and injunction with respect to landed property forming part of Khewat No. 10 of village Mantribug. Learned Trial Court Sub-Judge, Shopian, in civil suit No. 254 of 1985 by his judgment and decree dated Nov. 21, 1985, proceeding ex parte against the appellant decreed the suit based on compromise allegadly executed by the parties whereby the appellant is said to have transferred his share of immoveable property by oral sale in consideration of payment of money to the respondent and surrendered possession thereof.

(2.) The learned District Judge on appeal by the respondent against the decree passed by learned Sub-Judge, allowed the appeal holding that an oral sale of immoveable property being in violation of Sec. 138 of the J. & K. Transfer of Property Act cannot be recognised under law to pass any title to the appellant dismissed the suit. Since the learned Trial Court based its findings in ex parte on execution of compromise in support of which the appellant adduced his evidence without going into the merit of the claim regarding property in question this second appeal was admitted on the following substantial questions of law :

(3.) While arguing the appeal learned Counsel for the appellant with the assistance of proviso to sub Sec. (5) of Sec. 100 wanted to formulate some more substantial questions of law for setting aside the judgment and decree passed by the first Appellate Court. It is submitted that the case set up by the respondent before the learned District Judge opposing compromise and application of Sec. 138 of the Transfer of Property Act was never pleaded by him before the Trial Court and he cannot be allowed to retract from the compromise which stand proved. If the plea is allowed to stand, it is argued, that in that event case deserves to be remended to the Trial Court for disposal according to law after taking into account allegations made therein.