R.S.A. No. 2543 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2543 of 2005 Date of decision: 16.1.2009 Jatinder Kumar ....Appellant Versus Smt. Anita Mehra ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Amit Jain, Advocate, for the appellant. Mr. R.K. Sharma, Advocate, for the respondent. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 28.4.2005 passed by the learned lower appellate Court vide which the suit filed by the plaintiff/respondent stands decreed. The plaintiff/respondent filed a suit for declaration with consequential relief of permanent injunction claiming herself to be owner in possession of the suit property. The case set up by the plaintiff was that 5/11th share of the suit property was purchased by the plaintiff and thereafter remaining 6/11th share was also purchased from Smt. Manju Kumari wife of Virender Kumar and Kumud Kishore son of Jugal Kishore by way of registered sale deed. In the land purchased, Smt. Shakuntla widow of Jugal Kishore was lessee to the extent of 5/11th share out of the aforesaid 6/11th share, she surrendered her lessee rights regarding R.S.A. No. 2543 of 2005 -2- 5/11th share in favour of vendors vide release deed dated 26.9.1988. The defendant claimed to be lessee to the extent of remaining 1/11th share out of 6/11th share with Smt. Shakuntla. The defendant/appellant leased out his 1/11th share in favour of Shakuntla vide registered lease deed dated 4.10.1985 and since then he ceased to have any right, title or interest in the entire suit land. The mutation of lease deed dated 4.10.1985 was not sanctioned and thus, his name continued to appear in the revenue record. The plaintiff claimed that in pursuance of the purchase, she is owner in possession of the entire suit land as absolute owner and the defendant by taking undue advantage of revenue record was trying to interfere with her possession by raising construction over part of the property. The suit was contested wherein a plea was taken that the plaitniff/respondent had not come to Court with clean hands and the suit was not maintainable. It was claimed that the defendant was the owner and in physical possession of the suit land and had been cultivating the suit land with the help of his father and family members. On the pleadings of the parties, following issues were framed: "1. Whether the plaintiff is exclusive owner in possession of the agricultural land as detailed in para No. 1 of the plaint as alleged? OPP 2. Whether the plaintiff has not come to the Court with clean hands? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is bad for non-joinder and mis- joinder of necessary parties? OPD 5. Whether the plaintiff is estopped by his own acts R.S.A. No. 2543 of 2005 -3- and conduct etc? OPD 6. Whether the suit is time barred? OPD 7. Relief." The learned trial Court held that the plaintiff was the exclusive owner but not in possession of 1/11th share which was shown to be in possession of the appellant/defendant as per revenue record. Issue Nos. 2 to 7 were decided in favour of the plaintiff and against the appellant/defendant. However, in view of the finding recorded by the learned Court on issue No. 1, suit qua 1/11th share was ordered to be dismissed. The plaintiff/respondent preferred an appeal. The learned District Judge reversed the finding of the learned trial Court on issue No. 1 in view of the fact that there was documentary evidence on record showing that the defendant/appellant had leased out his 1/11 share in favour of Shakuntla by way of registered lease deed dated 4.10.1985, which stood transferred to plaintiff/respondent by Smt. Shkuntla, by way of release deed. The learned Court, thus, held that in view of transfer of lessee rights in favour of Shakuntla, it is Shakuntla who could claim possession of 1/11th share and not the defendant/appellant as he ceased to have any interest in the property and, therefore, could not interfere in possession of plaintiff/respondent. Learned counsel for the appellant vehemently contends that the finding recorded by the learned lower appellate Court cannot be sustained as it is contrary to the revenue record brought on record showing that the defendant/appellant continued to be in possession of 1/11th share. It is further the case of the appellant that once Shakunta was not impleaded as party to the suit, therefore, the finding recorded by the R.S.A. No. 2543 of 2005 -4- learned trial Court was based on appreciation of evidence in true perspective, whereas learned appellate Court wrongly reversed the findings on issue No. 1. However, on consideration of matter, I find no force in the contentions raised by the learned counsel for the appellant. Once it is not in dispute that the plaintiff/respondent is owner of the entire property, it was not open to the defendant/appellant to have interfered with her possession. The defendant/appellant, therefore, has no right to interfere in the ownership or possession of the plaintiff/respondent in view of the transfer of his lessee rights in favour of Shakuntla by way of registered lease deed. By way of a registered lease deed the defendant/appellant had transferred his lessee rights in favour Shakuntla, it was thus proved on record that the revenue entries did not depict the correct picture. There is no other evidence on behalf of the defendant/appellant showing him to be in possession of the property in dispute. It is settled law that presumption qua revenue record is rebuttable, which has been done in present case. The learned lower appellate Court rightly reversed the finding on issue No. 1 by appreciating the evidence on record, which calls for no interference. This appeal raises no substantial question of law for consideration by this Court. Dismissed. (Vinod K. Sharma) Judge January 16, 2009 R.S.