JUDGMENT

Thakker, J.-Leave granted.

2. The appellants herein have challenged the order passed by the High Court of M.P. (Indore Bench) on 23rd August, 2002 in Second Appeal No. 302 of 1982. By the said order, the High Court confirmed the order passed by the Second Additional Judge to the Court of District Judge, Shajapur dated 25th February, 1982, by which it set aside the judgment and decree dated 19th October, 1974 passed by Civil Judge, Class II, Shajapur.

3. The case of the appellants is that at village Kanardipura Tehsil Shajapur, there was a land bearing Khasra Nos. 294/1, 317, 319, 320 and 321. It was in possession of one Kalu Singh S/o. Bheru Singh. A dispute arose between Kalu Singh on the one hand and Revenue Authorities on the other about the nature of the land. The case of Kalu Singh was that his late father Bheru Singh was the owner of the land and was in possession thereof. His name was recorded as proprietor. After coming into force of the Madhya Bharat Zamindari Abolition Act, 1951 the land remained grove and hence exempted from the provisions of the Act. Kalu Singh, therefore, could possess the land. Proceedings were initiated by Kalu Singh against the State but he lost before Tehsildar, Collector as well as Commissioner. He finally approached the Board of Revenue and the Board vide its order dated 2nd December, 1959, allowed the revision and set aside the orders passed by the authorities below. A direction was issued by the Board to the Collector to determine the terms and conditions on which the land would be settled and groves would continue in possession of Kalu Singh. In pursuance of the said order, Patta was issued in favour the respondents on 14th March, 1968.

4. When the appellants came to know about the grant of land to the respondents, eight villagers of village Kanardipura filed a suit for declaration of title, permanent injunction as also for the possession of the suit land. It was a suit filed by the villagers in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure, 1908. The suit was contested by the respondents - defendants. The trial court, after appreciating the evidence, oral and documentary, held that the suit land was not grove, but it was Charnoi land i.e. grazing land for village people. In view of the said finding, the trial court held that the plaintiffs were entitled to declaration. Accordingly, the suit filed by the plaintiffs was decreed. It was declared that the defendants had got neither title over the land nor they could stop the grazing of animals of the plaintiffs and villagers of Kanardipura over the suit land. Permanent injunction was, therefore, issued against the defendants restraining them from creating obstruction of any kind in the feeding of animals of the plaintiffs and village people . Being aggrieved by the decree passed by the trial court, the respondents preferred an appeal which was allowed by the lower appellate court against which the appellants approached the High Court. The Second Appeal was admitted for final hearing on a substantial question of law framed as under:

"Whether in the facts and circumstances of the case, lower appellate Court, by upsetting the decree of the Trial Court has committed an error of law in dismissing the plaintiff s suit by not properly considering the evidence and material on record and also by not properly considering the provisions of M.B. Zamindari Abolition Act relating to the controversy in suit, especially when the respondent - defendants who are the sons of Zamindar have based their claim on the basis of the patta given by their father"?

5. The High Court after hearing the parties and perusing the record, dismissed the appeal upholding the judgment of the lower appellate court observing that the suit filed by the residents was "misconceived". The High Court noted that the suit was filed in a representative capacity but observed that when a judicial order was passed by the Board of Revenue under the provis