important point
The formulated questions of law must arise from orders of the courts below.

judgment

Dr. ARIJIT PASAYAT, J. —

1.Challenge in these appeals is to the judgment of a learned Single Judge of the Madhya Pradesh High Court in Second Appeal No.180 of 1993. The appellant-plaintiff filed a suit for declaration of his title and permanent injunction in respect of the lands. The plaintiff claimed to be bhumiswami of the land. According to him, deceased Nannu Khan and his son Hafiz Khan-respondent No.1 forcibly secured the possession of the land on 1.7.1970 and deprived him of his rights over the lands. According to him, the defendants had no right or interest to continue their possession over the suit lands. Therefore, the suit was filed. The defendants filed a joint statement and denied title of the plaintiff and pleaded that the plaintiff’s right over the suit land had extinguished as they had perfected their title by adverse possession. Plaintiff used to reside in Bhopal for more than 20 years and the defendants are in possession of the suit lands openly to the knowledge of the plaintiff from 1962. Since their possession over the land was for more than 12 years, the suit is barred by limitation. The trial Court held that the possession of the defendants is not adverse but they are in permissible possession of the suit lands. Therefore, it was held that the plaintiff is entitled for a decree of possession. The first Appellate Court found that the defendants are in possession of the suit lands with the permission of the plaintiff. It was also held that the defendants have failed to prove their adverse possession. Accordingly, the judgment and decree of the trial Court were affirmed.

2.Respondents filed Second Appeal in terms of Section 100 of the Code of Civil Procedure, 1908 (in short the ‘CPC’). The following question stated to be a substantial question of law was formulated for adjudication :

“Whether the finding that the defendants were cultivating the lands with the permission of the plaintiffs for more than six years from the date of filing of the suit, the defendants have acquired any Bhumiswami rights under Section 168 of the M.P. Land Revenue Code?”

3.According to the High Court the only question which remained in the case was whether the possession of the defendants was by way of lease or otherwise. Analyzing the evidence on record it was held that the defendants had acquired the right of occupancy tenant and, therefore, no decree for eviction can be passed.

4.According to learned counsel for the appellant no issue relating to any use of rights or any rights under Section 168 of the M.P. Land Revenue Code (in short the ‘Code’) was formulated.

5.An entirely new case has been made out in the Court. Learned counsel for the respondent submitted that in view of the findings recorded, the conclusions of the High Court cannot be faulted.

6. It is to be noted that the High Court has come to a conclusion that respondent No.1 was son of the deceased and, therefore, was Bhumiswami under Section 169 of the Code. But, it is to be noted that it was nobody’s case that the position related to possession of the defendants by way of lease or otherwise. The issues framed were as follows :

1.Whether the plaintiff has title on the suit lands.

2.Whether the defendants have dis-possessed the plaintiff on 1.7.1970 and have taken illegal possession.

3.Whether the plaintiff is entitled to claim compensation and if so, what rate.

4.Whether the defendants on the basis of the principle of adverse possession have acquired title of the suit lands.

5.Relief and costs.

7.As would be seen from the above the basic issue was Issue No.4 which relates to adverse possession. There was no issue even relating to any lease having been executed. The High Court held that once it is concluded that the suit lands were cultivated with the permission of the Bhumiswami then considering the language of Section 168 of the Code, that lease means transfer of right to enjoy any land made for a certain time, the question has to be considered accordingly. Sections