IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 403 of 1999 Date of decision: 30.06.2010 ____________________________________________________________ Shri Harsaran Sharma .....Appellant. Versus Shri Kashmiri Lal .....Respondent. Coram The Hon'ble Mr. Justice Surjit Singh, J. Whether approved for reporting?1 For the appellant: Mr. Ramakant Sharma, Advocate. For the respondent: Mr. K.D. Sood, Advocate. ____________________________________________________________ Surjit Singh, J (oral). This Regular Second Appeal by the plaintiff was admitted on the following substantial question of law: “Whether the Courts below have mis- interpreted and mis-construed the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972?” 2. Appellant/plaintiff filed a suit for specific performance of agreement dated 21st January, 1994, Ex. PW-1/A, by which respondent/defendant agreed to sell his one-fifth share in land measuring 1 bigha 5 biswas bearing khasra No. 375/319/99 situate in village Bhatanwali, Tehsil Paonta Sahib, hereinafter referred to as suit property, alongwith two room structure standing thereon. As per agreement, sale deed was to be executed on or before 31st 1 Whether reporters of Local Papers may be allowed to see the judgment? -: 2 :- December, 1994. Sale consideration was settled at Rs. 48,000/- and a sum of Rs. 8,000/- was paid at the time of execution of the agreement. Remaining amount of Rs. 40,000/- was agreed to be paid at the time of execution of the sale deed. Notices were issued to the respondent/defendant to execute the sale deed, when he did not heed to the oral requests. He did not respond even to the written notices. So, the suit was filed. It was specifically averred that the plaintiff had always been ready and willing to perform his part of the contract and was still ready and willing to do so. 3. Respondent/defendant contested the suit. It was stated that the plaintiff was a non-agriculturist within the meaning of Section 118 of the H.P. Tenancy and Land Reforms Act and, therefore, the agreement was not executable. Also, it was stated that sale consideration was fixed at Rs. 80,000/-, but the plaintiff manipulated to get it recorded as Rs. 48,000/- in the agreement, in connivance with the scribe and the attesting witnesses. It was also pleaded by the defendant that the structure existing on the site, agreed to be sold, was being used by him for a purpose subservient to agriculture and, therefore, the agreement was not saved even by Explanation (ii) to Section 118 of the H.P. Tenancy and Land Reforms Act. 4. Trial Court concluded that permission of the Government under Section 118 of the H.P. Tenancy and Land Reforms Act was required to be obtained by the plaintiff and he having failed to take any steps in that direction could not be said -: 3 :- to have been ready and willing to perform his part of the contract. Consequently, the suit was dismissed. Appeal filed by the plaintiff in the Court of District Judge also stands dismissed. 5. I have heard the learned counsel for the parties and gone through the record. 6. Learned counsel for the appellant replies upon a Division Bench judgment of this Court in Nirmal Singh versus Randhir Sharma, 1994 (2) Shimla Law Cases 255, in support of his submission that since the subject matter of the agreement is recorded as Gair Mumkin Abadi, permission of the Government, under Section 118 of the H.P. Tenancy and Land Reforms Act, was not required. What has been held in the aforesaid precedent relied upon by the learned counsel for the appellant is that where the subject matter of the agreement is a building which is not used for a purpose subservient to agriculture, government permission is not required in view of explanation (ii) to Section 118 of the H.P. Tenancy and Land Reforms Act. 7. In the present case, respondent/defendant very categorically pleaded, while replying para-1 of the plaint, that a two-room structure standing on one biswa area was being used for a purpose subservient to agriculture and that the rest of the area was under cultivation. Plaintiff/appellant filed replication in which he did not specifically deny the averment to the effect that the two-room structure existed only on one biswa area and the same was being used for a purpose subservient to agriculture. Not -: 4 :- only this, it has come in the testimony of respondent/defendant, who appeared as DW-1, that he has been a resident of village Kishanpura since the times of his forefathers. Subject matter of the agreement is situated in village Bhatanwali. That means he is not resident of village Bhatanwali and the structure existing on the subject matter of the agreement is being used only for a purpose subservient to agriculture, especially when there is un- controverted plea of the respondent/defendant that the remaining 4 biswa area is under cultivation. 8. In view of the abovesaid position specifically the question of law, on which the appeal was admitted, is answered against the appellant. Consequently, the appeal is dismissed. (Surjit Singh) Judge 30th June, 2010 (rajni)