JUDGMENT Devinder Gupta, J.This is Defendants appeal against the judgment and decree passed on 28-12-1990 by a learned Single Judge of this Court by which a decree for possession of the suit property by way of specific performance of agreement of sale was passed in favour of the plaintiff/ respondent. 2. On 7-8-1989, an agreement of sale was entered into between the parties by which defendant agreed to part with the property described in revenue records as four biswas of land comprised in khasra No. 255, entered at Khewat No. 34, Khatauni No. 325 situated in mauza Sanjauli, Tehsii and District, Shimla alongwith the building standing thereupon for a consideration of Rs. 5,00,000. A sum of Rs. 1,00,000 was received by way of earnest money and it was stipulated that the balance sale consideration of Rs. 4,00,000 would be paid by the plaintiff and received by the Defendant at the time of registration of sale deed. Under the belief that the property to be conveyed by defendant to the plaintiff was land as defined in the explanation to section 118. of the H. P. Tenancy and Land Reforms Act, 1972 (hereinafter referred to as the Act), it was also stipulated that since the plaintiff was not an agriculturist, an application will be moved by him seeking permission of the State Government for the purchase of the property and within two months from the date of receipt of the permission, sale deed was agreed to be executed by the defendant conveying his rights, title and interest in favour of the plaintiff. 3. The suit was instituted on 19-7-1990 by the plaintiff seeking decree for possession by way of specific performance of the agreement stating that he has always been ready and willing to perform his part of contract and was still ready and willing to perform his part of the contract in pursuance to the agreement for which purpose he had also applied to the State Government seeking permission under section 118 of the Act, but obtaining of the permission was pot a bar in obtaining relief against the Defendant since defendant had, despite requests, failed to execute the sale deed in his favour. 4. The defendant in response to the summons put in appearance and stated that no written statement is to be filed by him and was prepared to suffer the decree as prayed by the plaintiff. 4. The defendant in response to the summons put in appearance and stated that no written statement is to be filed by him and was prepared to suffer the decree as prayed by the plaintiff. On 26-11-1990, statement of defendant was recorded, wherein it was stated by him that he was ready and willing to execute the sale deed and get it registered and hand over possession to the plaintiff on receipt of the balance sale consideration. He prayed that for performance of the act, some reasonable time may be fixed. 4-A* Learned Single Judge, after hearing the learned Counsel for the parties and on the basis of material on record held that the suit property being put to residential as well as commercial use, and being a constructed area was not subservient to agriculture and that in the jamabandi for the year 1981-82, its nature was recorded asGair Murnkin Makaan’. Consequently, it was held that the suit property was not land, as envisaged under section 118 of the Act and there was no bar for the transfer of the property by defendant in favour of plaintiff and that a lawful decree can be passed in favour of the plaintiff. In view of the admission of defendant, decree for possession of suit property, by way of specific performance of agreement of sale, was passed in favour of the plaintiff against the defendant, on payment of the balance sale consideration of Rs. 4,00,000 within a period of four months, from the date of passing of decree. The decree for injunction restraining the defendant from transferring, alienating or renting out the suit property or any portion thereof was also passed. It is this judgment and decree which is under challenge, in this appeal, at the behest of the defendant. 5. The grounds for challenging the decree, as stated in the memorandum of appeal are that no decree for specific performance could have been passed in plaintiffs favour without the State Government granting the requisite permission as contemplated under section 118 of the Act and it has wrongly been assumed that there was no bar for the transfer of the property. The other ground is that the decree as framed is not competent and legal. 6. We have heard the learned Counsel for the parties and perused the relevant record. 7. The other ground is that the decree as framed is not competent and legal. 6. We have heard the learned Counsel for the parties and perused the relevant record. 7. At the very outset we may point out that in view of the admission made by the defendant, he has no right of appeal, since he cannot be said to be a person aggrieved against the judgment and decree. But in view of the legal questions raised about the legality of the decree, we have proceeded to decide the appeal on merits. We would also like to place on record subsequent developments which have, in the meanwhile, happened. 8. Irrespective of the findings recorded by the learned Single Judge that the property involved in the suit, for which agreement was entered between the plaintiff and defendant was not covered by definition of land, within the ambit of section 1.18 of the Act, the application moved by the plaintiff seeking permission of the State Government as per requirements of sub-clause (i) of sub-section (2) of section 118 of the Act was persued by him. On 22-10-1992, Deputy Secretary (Revenue), Government of Himachal Pradesh informed the plaintiff that requisite permission had been granted by the State Government for transfer of four biswas of land along-with construction standing thereupon, which was owned by the defendant. It was also conveyed to the plaintiff that sanction for transfer was valid only for a period of 180 days Shri Kuldip Singh, Advocate, learned Counsel appearing for the plaintiff has stated at the Bar that expiry of the period mentioned in the communication, the plaintiff again applied to the State Government seeking extension of period, to enable him to purchase the property. The plaintiff was informed that there was no need to accord sanction since the property is not covered by definition of land’. 9. Turning to the material on record, we find that in jamabandi for 1981-82, the property is described as 6Gair Mumkin Makaan’ meaning thereby that the nature of property in revenue record is shown as MAKAAN\ namely, a house. It is not disputed that it is a residential house and that the same is not subservient to agriculture. 9. Turning to the material on record, we find that in jamabandi for 1981-82, the property is described as 6Gair Mumkin Makaan’ meaning thereby that the nature of property in revenue record is shown as MAKAAN\ namely, a house. It is not disputed that it is a residential house and that the same is not subservient to agriculture. The question raised is as to whether it was necessary that the plaintiff, who admittedly is a non-agriculturist to have obtained the requisite permission from the State Government as per provisions of section 118 (2) (i) of the Act. Answer to this question is dependent upon the nature of the property. 10. For the first time, a provision was made in this State for control or transfer of agricultural land to a non-agriculturist, when in Chapter X{ of the Act section 118 was included under the heading "Transfer of Land to Non-Agriculturists Barred". The constitutional validity of section 118 was upheld by a Division Bench of this Court in Smt. Sudarshna Devi v; Union of India and another, ILR 1978 HP 355. 11. Section 118 prohibits transfer of land by any mode including sale in execution of a decree of a civil court or for recovery of arrears of land revenue, by way of sale, gift, exchange, lease, mortgage with possession or creation of tenancy, in favour of a person, who is not an agriculturist. This prohibition is subject to the provisions of sub-section (2) of section 118, wherein certain transfers are made permissible. The prohibition in sub-section (1) extends to the transfer of land. Land in the Act has been defined under Clause (7) of section 2 to mean land which is not occupied as a site of any building in a town or a village and is occupied or has been let for agricultural purposes or purposes subservient to agriculture or for pasture. It includes sites of buildings and other structures on such land, orchards, ghasnies, banjar land, and private forests within the definition of land. 12. Till the coming into force of the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 1987 (Act No. 6 of 1988), the aforementioned definition of land’ in the Act as contained in Clause (7) of section 2 applied to section 118 also. By virtue of the amendment, which came into force on 14-4-1988, section 118 was substituted and the same now reads:— “118. By virtue of the amendment, which came into force on 14-4-1988, section 118 was substituted and the same now reads:— “118. (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the Time being in force, but save as otherwise provided in this Chapter, no transfer of land (including sales in execution of a decree of a civil court or for recovery of arrears of land revenue), by way of sale, gift, exchange, lease, mortgage with possession or creation of a tenancy shall be valid in favour of a person who is not an agriculturist. (2) Nothing in sub-section (1) shall be deemed to prohibit the transfer of land by any person in favour of— (a) a landless labourer ; or (b) a landless person belonging to a scheduled caste of a scheduled tribe ; or (c) a village artisan ; or (d) a landless person carrying on an allied pursuit ; or (e) the State Government ; or (f) a co-operative society or a bank ; or (g) a person who has become non-agriculturist on account of the acquisition of his land for any public purpose under the Land Acquisition Act, 1894 ; or (h) a non-agriculturist who purchases or intends to purchase land for the construction of a house or shop, or purchases a built up house or shop, from the Himachal Pradesh State Housing Board, established under the Himachal Pradesh Housing Board Act, 1972, or from the Development Authority constituted under the Himachal Pradesh Town and Country Planning Act, 1977, or from any other statutory corporation set up under any State or Central enactment ; or (i) a non-agriculturist with the permission of State Government for the purpose that may be prescribed : Provided that a person who is a non-agriculturist but purchases land with the permission of the State Government under Clause (i) of this sub-section shall, irrespective of such permission, continue to be a non-agriculturist for the purpose of this Act: Provided further that a non-agriculturist in whose case permission to purchase land is granted by the State Government, shall put the land to such use for which the permission has been granted, within a period of two years or a further such period, not exceeding one year, as may be granted by the State Government, to be counted from the day on which the deed covering the sale of the land is registered and if he fails to do so, the land so purchased by him shall vest in the State Government free from all encumbrances. (3) No Registrar or the Sub-Registrar appointed under the Indian Registration Act, 1908 shall register any document pertaining to a transfer of land, which is in contravention to sub-section (1) and such transfer shall be void ah initio and the land involved in such transfer, if made in contravention of sub-section (1), shall, together with structures, buildings or other attachments, if any, vest in the State Government free from all encumbrances : Provided that the Registrar or the Sub»Registrar may register any transfer-to where the lease is made in relation to a part or whole of a building; Or (ii) where the mortgage is made for procuring the loans for construction or improvements over the land either from the Government or from any other financial institution constituted or established under any law for the time being in force or recognised by the State Government. (4) It shall be lawful for the State Government to make use of the land which is vested or may be vested in it under sub-section (2) or sub-section (3) for such purposes as it may deem fit to do so. Explanation.—-For the purpose of this Section, the expression "land* shall include— (i) land, the classification of which has changed or has been caused to be changed to "Gair-mumkin", "Gair-mumkin Makaan" or any other Gair-mumkin land by whatever name called, during the past five years countable from the date of entry in the revenue records to this effect ; (ii) land recorded as "Gair-mumkin", "Gair-mumkin Makaan" or any other Gair-mumkin land, by whatever name called in the revenue recoids, except constructed area which is not subservient to agriculture ; and (iii) land which is a site of a building in a town or a village and is occupied or let out not for agricultural purposes or purposes subservient to agriculture " A bare reading of the provision would show that sub-section (1) of section 118 prohibits the transfer of land in favour of a person, who is not an agriculturist. Agriculturist has been defined under Clause (2) of section 2 to mean a person, who cultivates land personally in an estate situated in Himachal Pradesh. Agriculturist has been defined under Clause (2) of section 2 to mean a person, who cultivates land personally in an estate situated in Himachal Pradesh. Word To cultivate personally has also been defined under Clause (4) of section 2 as under :?— "to cultivate personally" with its grammatical variation and cognate expression means— (i) by ones own account; (ii) by ones own labour ; (iii) by the labour of any member of ones family ; or (iv) under the personal supervision of one-self or any member * of ones family by hired labour or by servant on wages payable in cash." Explanation to Clause (4) in section 2 says that in the case of joint family, the land shall be deemed to have been cultivated personally if it is cultivated by any member of such family. Word ‘ family has also been defined in Clause (5) to mean, husband, his wife, their children including step or adopted children and also includes parents, grand-parents, brothers, unmarried, widowed, separated and divorced sisters of the husband. Explanation added to section 118, clarifies that for the purpose of section 118, expression land shall also include three other categories of land enumerated therein. In other words, in addition to the land as defined under Clause (7) of section 2 of the Act, the categories of land as enumerated in sub-clause (it to (iii) of the Explanation are also included in the definition of land. 13. On the one hand, Clause (7) of section 2 excludes from the definition of land all categories of land, which are not occupied as the site of any building in a town or a village, except the one which are occupied or has been let for agricultural purposes or for purposes subservient to agriculture or for pasture, but in Clause (iii) to Explanation in section 118, it expressly includes the same within the expression land\ A site of a building in a town, which is occupied or has been let or even a site of a building in a village which is occupied or has been let for any purpose, is included in the expression land. Reading Clause (iii) to explanation to section 118 alongwith Clause (7) of section 2 of the Act would make the intention of legislature abundantly clear and unambiguous that any site of a building whether in a town or village and occupied or let for any purpose including agricultural purpose or purpose subservient to agriculture is included in the expression land for the purpose of prohibition contained in section 118 of the Act. 14. The property in question is not a site of a building in a town or village, but is only a "Gair-mumkin Makaan", namely, constructed property, which is so recorded in revenue records atleast even in 1981-82. Therefore, the same is not covered in Clause (iii) of the explanation. 15. In Clause (i) to the explanation, all lands, the classification of which has been changed or have been caused to be changed to any type of "Gair-mumkin" during the last five years, countable from the date of entry in the revenue records to this effect, are by necessary implications, included within the expression of land. In other words, in case it is shown that a particular piece of land was earlier not classified as “Gair-mumkin", but within the last five years by a change effected in revenue records, its nature has been changed or is caused to be changed to any type of "Gair-mumkin" land, the same would be treated as land. 16. Clause (i) will also not apply to the facts of the present case, since it is not the case of the parties that within the last five years, the nature of the land was changed in revenue records or was allowed to be changed as "Gair-mumkin". The case is that there is a constructed house standing upon the land, which is not subservient to agriculture. Incase, this is the position then by virtue of Clause (ii) of the explanation, which says that land recorded as "Gair-mumkin Makaan" or any other "Gair-mumkin land" by whatever name called in revenue records, would b^ included in the expression land except constructed a*ea, which is not subservient to agriculture. 17. Incase, this is the position then by virtue of Clause (ii) of the explanation, which says that land recorded as "Gair-mumkin Makaan" or any other "Gair-mumkin land" by whatever name called in revenue records, would b^ included in the expression land except constructed a*ea, which is not subservient to agriculture. 17. Reading of the three clauses collectively along with Clause (7) of section 2 of the Act would make it clear that all types of laid situate in Himachal Pradesh including sites and other structures on such lands, whether let for agricultural purposes or for the purpose of subservient to1 agriculture including orchards; Ghasnis, Banjar lands and private forests are included within the expression land, for the purposes of section 118 of the Act. The only category of land, which is excluded from the operation of section 118 is that land or area which is constructed but which is not subservient to agriculture. Even an area, if recorded in revenue records as "Gair-mumkin" or "Gair-mumkin Makaan", the same would be included in the expression of land irrespective of the purpose for which the same is occupied or let out, except a constructed area which is not subservient to agriculture. In other words, prohibition contained in section 118 of the Act will not apply to a constructed area which is not subservient to agriculture. 18. Since the property in suit is the constructed area, which admittedly is not subservient to agriculture, there is no ground to interfere with the findings recorded by the learned Single Judge that the property is not covered by the definition of land within the ambit of section 118 of the Act. 19. A subsequent development which deserves further consideration is that the plaintiff in pursuance to the decree of the learned Single Judge has already deposited a sum of Rs. four lacs on account of balance sale consideration and in addition thereto, Rs. 40,000 has been deposited to meet the expenses of costs of stamps for sale deed and registration charges. The amount was kept in a fixed deposit and by virtue of the order passed on 10th August, 1992, was reinvested. The fixed deposit has now matured on 30th September, 1992. There is no order of reinvestment passed thereafter. 20. In view of the findings recorded above, we find no force in the appeal which deserves dismissal. The amount was kept in a fixed deposit and by virtue of the order passed on 10th August, 1992, was reinvested. The fixed deposit has now matured on 30th September, 1992. There is no order of reinvestment passed thereafter. 20. In view of the findings recorded above, we find no force in the appeal which deserves dismissal. The same accordingly is dismissed leaving the parties to bear their respective costs. However, while parting, following further directions are made:— The fixed deposit receipts be got renewed from the date of maturity till 31-8-1993." 21. In order to facilitate the defendant to execute requisite sale deed in favour of the plaintiff, transferring and conveying all rights, title and interests in favour of the plaintiff, we direct that within a period of one month from today, an application will be made by the defendant to the Income Tax authorities for obtaining income tax clearance certificate. On receipt of the same, the defendant will inform this fact to the plaintiff by sending a registered letter calling upon the plaintiff to get the sale deed scribed and registered. 22. Out of the amount deposited by the plaintiff, a sum of Rs. 40,000 alongwith proportionate interest accrued thereupon from the date of deposit till maturity will be refunded to the plaintiff to enable him to purchase the requisite stamp papers for getting the sale deed scribed thereupon. On the execution of the sale deed by the defendant in favour of the plaintiff and on getting the same registered, the defendant shall be entitled to get refunded the balance amount of Rs. four lacs alongwith interest accrued thereupon from the date of deposit till maturity. Order accordingly. -