The prohibition on land transfer under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, does not apply to constructed areas that are not subservient to agriculture.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment and decree dated 27.06.2013, passed by the learned District Judge (Forests), Shimla (learned Appellate Court), vide which the judgment and decree dated 26.07.2010, passed by the learned Civil Judge (Junior Division), Court No.5, Shimla, H.P. (learned Trial Court) were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that she had purchased one single storeyed house mentioned in the head note and para-1 of the plaint by way of registered sale deed, duly executed on 16.05.2002 and registered on 01.06.2002 with Sub-Registrar (Urban), Shimla, vide Registration No. 205, as per the terms of the decree passed in civil suit bearing Registration No.61-1 of 1997, decided on 09.09.1998 by Learned Sub-Judge-I, Shimla, the plaintiff is the absolute owner in possession of the property, especially the galli behind it and the roof above the four rooms, and the change of mutation effected vide order dated 19.09.2003 by Tehsildar (Urban), Shimla and the sale deed executed in favour of the defendant were null and void, a consequential relief of permanent prohibitory injunction for restraining the defendant from using the roof for stacking flower pots and throwing water over it and a mandatory injunction directing the defendant to remove the flower pots from the roof of the plaintiff’s property. It was asserted that the plaintiff is the owner in possession of the house, roof, galli, verandah and courtyard as per the sale deed registered in her favour. The defendant claimed to have purchased one flat vide sale deed dated 27.08.1994. The defendant started using the roof of the plaintiff’s house as her passage for ingress and egress to her flat even though she had a separate passage from the common entrance. The defendant also claimed the cemented roof of the plaintiff's property to be her terrace. However, no roof was sold to the defendant. The General Power of Attorney of the previous owner had no right to transfer the terrace to the defendant. The defendant interfered with the plaintiff’s ownership and possession. Therefore, a suit was filed seeking the relief mentioned above.

3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, the plaintiff having not come to the Court with clean hands, the suit being barred by the provisions of Order II Rule 2 and Order IX Rule 9 of the CPC, the plaintiff being estopped from filing the suit by her act and conduct and the suit having not been properly valued for Court fees and jurisdiction. It was asserted that the terrace in front of the defendant’s residential flat was purchased by her by a registered sale deed dated 27.08.1994 from its previous owner. The terrace was in possession of the defendant as a tenant since 1976, and she used it to the exclusion of everyone, including the plaintiff. The plaintiff had also filed a civil suit against the defendant in the year 1999, which was dismissed in default of appearance in the year 2000. The plaintiff is interfering with the possession of the defendant. The plaintiff had obtained the decree fraudulently, which does not bind the rights of the defendant. The terrace is the only passage for ingress and egress from the defendant’s residential flat. The plaintiff is using the passage from the terrace continuously since 1976. Therefore, it was prayed that the present suit be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. Learned Trial Court framed the following issues on 4.12.2003:

1. Whether the plaintiff is entitled to a decree of declaration, as alleged? OPP.

2. Whether the plaintiff is entitled for a de