IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.132 of 1995. Judgment Reserved on: 22.07.2008. Date of decision: 08.08.2008. Karam Chand & Others ….Appellants Versus Smt.Jit Kaur ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 For the Appellants: Mr.Ajay Sharma, Advocate. For the Respondent: Mr.K.D. Sood, Advocate. Dev Darshan Sud,J. This is the defendants’ appeal against the judgment and decree of the learned District Judge reversing the judgment and decree of the learned trial Court dismissing the suit instituted by the plaintiff for declaration to the effect that she is the owner in possession of land measuring 54 Kanals 2 Marlas as described in the plaint. The case set up by the plaintiff was that the defendants had sold the suit land by way of three different sale deeds Ext.P-1, Ex.P-2 and Ex.P-3. The plaintiff pleads that she has been the owner in possession of the suit land and her husband helps her 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 to cultivate this land. The case of the plaintiff is that the mutations for the sale deed were cancelled at the behest of the defendants and it is in these circumstances that she has approached the Court. The written statement makes interesting reading. After admitting the sale, the only defence taken by the defendants is in paragraph-3 which is reproduced:- “3. That in reply to para No.3 of the plaint it is submitted that the plaintiff concealed some facts at the time of execution of the sale deed and the sale was executed against the public policy of the State. The Revenue Officer on thorough enquiry rejected the mutation, hence the said sale has not been admitted to be valid and in accordance with the law. Rest of the contents of the para are wrong and denied.” This indeed sets up a strange defence. To accept the plea of the defendants would be to pass a decree enforcing the doctrine of unjust enrichment and encouraging dishonest litigation. Unfortunately, even the trial Court while accepting everything, including the execution and registration of the sale deed, has gone askew holding that no title could pass to the plaintiff in terms of the prohibition contained in Section 118(1) of the 3 H.P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the `Act’). In appeal, the learned District Judge re- appreciated the entire factual situation holding that the Government of Himachal Pradesh itself issued instructions reproduced in paragraph-11 of the judgment to the effect that sale deeds made in favour of married daughters should be registered and incorporated in the revenue records. The instructions contained in the letter which need consideration: “No.Rev.2E(5) 2/77-11 Clarification of Definition of an Agriculturist Government of Himachal Pradesh Department of Revenue The Financial Commissioner-cum- Secretary(Revenue) to the Government of Himachal Pradesh, Shimla-171 002. (i) All the Deputy Commissioners in Himachal Pradesh. (ii) All the sub-Divisional Officers(Civil) in Himachal Pradesh. (iii) All the Tehsildars in H.P. (iv) All the Naib Tehsildars in H.P. Subject: Clarification of definition of an agriculturist. Sir, I am directed to say that it has been brought to the notice of the Govt.that some Registrars/Sub Registrars are not entertaining the registration deeds evidencing sale of land in favour of married women, although their parent(s) happen(s) to be agriculturists within the meaning of section 2 of the 4 Himachal Pradesh Tenancy and Land Reforms Act, 1972. 2. The expression “agriculturist” has been defined under/Section (2) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, as under:- “Agriculturist” means a person who cultivates land personally in an estate situated in Himachal Pradesh”. 3. This definition has further been elaborated under sub-section (4) and (5) of this Section which are also reproduced hereunder:- “to cultivate personally” with its grammatical and cognate expression means- (i) by one’s own account; (ii) by one’s own labour. (iii) By the labour of any member of one’s family; (iv) Under the personal supervision of one self or any member one’s family, by hired labour or by servant on wages payable in cash. 5.“Family” means husband, his wife and their children including step or adopted children and include his parents, grand parents, brothers and un-married, widowed and divorced sisters. 3. The act no where provides that the status of a child as an 5 agriculturist shall change after he/she attains majority. This way it is clear that a daughter/son whose father owns land in H.P. and cultivates it “personally” is an agriculturist alright, since she/he is also one of the “children” of an agriculturist. I am therefore to say that the sale deed in such cases, should not be refused. The same holds good in respect of mutations also in such cases. Yours faithfully, Deputy Secretary(Rev.) To the Government of Himachal Pradesh. Endst.No.Rev.2E(5)2/77, dated Simla-2, the 30th Sept., 1988. This appeal was admitted on questions No.2 and 3 which read:- “2 Whether the letter of Government which is just a clarification can over ride the statue i.e. the Tenancy and Land Reforms Act, 1972? 3. Whether the impugned judgment and decree has been vitiated for want of necessary parties, i.e. State of Himachal Pradesh?” Question No.3 may be considered in the first instance. The State of Himachal Pradesh is not a necessary party. As noticed by me, the appellants herein have approached the Court with a plea not for vindication of their right but on a dishonest plea 6 purporting to act as the guardians of the interest of the State. Having received and appropriated the consideration and parted with the possession of the land, the only motive for their making allegations in the written statement that the sale is against public policy etc. is to extract more money alone and nothing else and seek enforcement of the doctrine of unjust enrichment which is against public policy. The second question may be considered. At the outset, as noticed, the written statement if read as a whole, shows nothing else than that the defendants are acting as guardians of State morality and interest. This role or mantle cannot be assumed by the appellants herein by urging public policy and interest under the cloak and protection of statutory provisions. The State is capable of looking after and protecting its own interest. The learned District Judge, on appreciation of the evidence came to the conclusion that the plaintiff-respondent belonged to an agriculturist family and was having the land cultivated through her husband and was in- fact an agriculturist in terms of the Act. It has also come in evidence that the respondent-plaintiff is residing with her father and her husband is a “Ghar Jawain” (residing with his father-in-law) and carrying out agricultural operation on the land of the plaintiff. So far as the interest of the State is concerned, all that need be said is that, as 7 rightly noticed by the learned District Judge, the instructions issued by the State itself are not contrary to the provisions of the Act. It is the State itself, which implements the provisions of the Act and has instructed the registering officer(s) to treat children as agriculturists even after the child(ren) attain(s) majority. The instructions further direct that the daughter or son of a father who owns land in Himachal Pradesh cultivates the said land personally which would include cultivation through ones kith and kin. This interpretation placed on the provisions of the Act nowhere derogates from the main purpose but is only supplemental to it. The Act was meant to protect the interest of the agriculturist(s) and not to give impetus to dishonest litigation. The submissions made on behalf of the appellants that in case interpretation as given in the instructions is accepted, it would be against the very provisions of the Act, cannot be accepted. The clarification when read with the main provisions of the Act is only supplementary and gives a purposeful interpretation to the Act and does not derogate from any its provisions or makes it such that its very foundation / fabric would be destroyed. The submissions to the contrary made by the learned counsel for the appellant cannot be accepted. Even otherwise on findings of fact, the learned Court below has correctly concluded that the plaintiff is 8 an agriculturist within the meaning of Section 2(2) of the Act and the bar under Section 118 is not attracted. Both these facts when considered in conjunction leave no doubt in my mind that the defendants by invocation on the questions as submitted with this appeal are doing nothing more than using the statute for unjust enrichment. Obviously, in case the decree of the trial Court is maintained, the appellants would be entitled to possession of the land which will be re-sold by them for a much higher price which cannot be permitted. The question is decided against the appellant. There is, thus, no merit in this appeal which is accordingly dismissed. There shall be no order as to costs. August 8, 2008. (Dev Darshan Sud) (aks) Judge.