1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RSA. NO._40 OF 1998. Judgment Reserved on: .10.7.2008 Date of Decision: 11.7.2007 Kishori Lal and Other ……………Appellants Versus Bawa Ramanand Gir Chela Bawa Kailashand Gir & Ors. …… Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? Yes For the appellants: Mr. R.K. Gautam, Sr. Advocate with Mr. Tara Singh, Advocate. For the respondents: Mr. K.D. Sood, Advocate. Kuldip Singh, J The appellants are the heirs of Piara Lal plaintiff, who had filed the appeal against the judgment, decree dated 12.11.1997 passed by learned District Judge, Solan Camp at Nalagarh in Civil Appeal No.4-NL/13 of 1994 confirming judgment, decree dated 6.11.1993 passed by learned Sub Judge Ist Class, Nalagarh in Civil Case No.220/1 of 1988. 2. The facts in brief, as per the case set up by the plaintiff _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 in the plaint, are that the plaintiff is owner in possession of the suit land measuring 11 biswas comprised in Khasra No.107 situated in village Nangal Uperla. The plaintiff had purchased 4 biswas land comprised in khasra No.77 in village Nangal Upeprla from the Custodian Department in an open auction for which sale certificate was issued to plaintiff on 2.1.1973. The plaintiff exchanged this land with the land of defendants measuring 4 biswas comprised in khasra No.107/1 and mutation to this effect was attested on 28.1.1984. The plaintiff again purchased 7 biswas land comprised in khasra No.107/2 vide sale deed dated 26.2.1985, which was registered on 2.3.1985. The order Ex.P-1 of Collector, Nalagarh dated 29.2.1988 passed in appeal No.3/88 and 4/88 and order Ex.P-2 of Divisional Commissioner in appeal No.49/88 and 50/88 are illegal, null and void. The plaintiff is an agriculturist in Himachal Pradesh. He was mortgagee of land with possession in the year 1970 and then he purchased land measuring 4 biswas from custodian department. 3. The defendants contested the suit and also filed counter claim. The defendants took the plea that the suit is bad for non- joinder of necessary parties, namely Ikadash Ruddar Mahadev. The exchange made by Chaudhary Ram was null and void and defendants are entitled to recover the possession. The plaintiff purchased 7 biswas land illegally and in contravention of Section 118 of Himachal Pradesh Tenancy and Land Reforms Act, 1972( for short Act). The learned Sub Judge dismissed the suit and counter claim on 6.11.1993 . The plaintiff filed appeal which has been 3 dismissed on 12.11.1997. The plaintiff filed second appeal, during pendency of appeal original plaintiff Piara Lal died and his legal representatives were brought on record. 4. The appeal has been admitted on the following substantial questions of law :- 1 Whether the issue No.3 regarding jurisdiction has been properly decided by the Ld. Trial Court or not? 2. Whether the Ld. Courts below have failed to interpret the provisions of H.P. Tenancy & Land Reforms Act specifically qua the “Agriculturist” and “land”? 3. Whether amendment of Section 2 of H.P. Tenancy & Land Reforms Act is effective retrospectively or not? 4. Whether the Mortgage Deed Ex.PW-8/A is admissible under law or not? 5. I have heard Mr. R.K. Gautam, learned Senior Advocate assisted by Mr. Tara Singh Chauhan, Advocate on behalf of the appellants and Mr. K.D. Sood, learned counsel for the respondents and gone through the record. Learned counsel representing the parties have jointly stated that in the present appeal the question involved is whether plaintiff and after him appellants are agriculturists under the Act. or not. In case, the appellants are not found to be agriculturists under the Act, then no relief can be granted to them. 4 Substantial Questions of Law 1 to 4 6. The substantial questions of law 1 to 4 are interconnected and therefore, these are being disposed of collectively. The basic question involved in the appeal is whether plaintiff and after him, appellants are agriculturists in Himachal Pradesh under the Act. Mr. R.K. Gautam, Senior Advocate representing the appellants has submitted that the plaintiff was mortgagee on 5-9 bighas agriculture land on 11.6.1970, as per mutation Ex.PC. This land was redeemed on 1.5.1975, but before that on 23.4.1975 he became mortgagee on another agricultural land vide Ex.PW-8/A. The precise submission of Mr. Gautam is that plaintiff purchased 7 biswas of land comprised in khasra No,.107/2 vide sale deed dated 2.3.1985 Ex.PW-2/A. He has submitted that mutation No.580 dated 28.1.1984 Ex.PH and mutation No.604 dated 19.3.1985 of exchange and sale respectively were wrongly set aside on the ground that plaintiff was not an agriculturist under the Act. The mutation of exchange and sale were attested after the coming into force of the Act. The learned counsel for the appellants has submitted that writing Ex.PW-8/A, dated 23.4.1975 proves that plaintiff and after him, appellants are agriculturists under the Act. The writing Ex. PW-8/A is not registered but, Mr. Gautam has submitted that despite the fact that Ex.PW-8/A is not registered still this writing can be looked into for collateral purpose, in order to determine the status of appellants as agriculturists. 5 7. It has not been disputed during the course of hearing that mortgage deed valueing more than Rs.100/- requires registration. Ex.PW-8/A is not registered. As per Section 49 of the Indian Registration Act no document requires by Section 17 to be registered, shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. The learned counsel for the appellants has pressed Ex.PW-8/A in order to show that plaintiff was mortgagee on the agricultural land and therefore, he was an agriculturist. In Mohan Lal Ganeshram vs. Gajrasingh Bhilusing and others AIR 1959 MP 178, the High Court upheld the finding of the Court below regarding inadmissibility of usufructuary mortgage even for collateral purpose being unregistered. In Sadhu Ram & Ors. Vs. Union of India & Ors. 1987 (1) (CLJ) (C&C) 51, it has been held that receipt Ex.P-2 amounts to sale of the mortgage rights is for a sum of Rs.100/- , it required registration under section 17(1)(b) of the Registration Act. Therefore, as the receipt is unregistered, it is not admissible in evidence. This being the position Ex.PW-8/A being unregistered therefore, Ex.PW-8/A can not be used to prove that the plaintiff was mortgagee or agriculturist on the land on the basis of Ex.PW-8/A. No other material from the record was relied by appellants for showing that plaintiff was an agriculturist under the Act at the time of exchange and sale in question. The two Courts below have rightly appreciated the material on record. No case has been made out 6 for interference. The substantial questions of law 1 to 4 are accordingly decided against the appellants. 8. No other point was urged. 9. The result of above discussion, the appeal fails and is accordingly dismissed. ( Kuldip Singh) Judge July 11, 2008 (sks)