JUDGMENT :

R. SUBHASH REDDY, J.

1. This Civil Appeal is preferred by the appellant-State of Madhya Pradesh, aggrieved by the judgment and order dated 08.11.2006 passed in Second Appeal No. 129 of 2006. By the aforesaid order, the High Court has dismissed the Second Appeal, preferred by the appellant herein confirming the judgment and decree passed by the learned IV Additional District Judge, Bhopal, in Civil Appeal No. 37-A/2005 dated 23.07.2005 and the judgment and decree dated 24.12.2004 passed by the learned XIIth Civil Judge, Class-II, Bhopal, in Civil Suit No. 138-A/2004.

2. Necessary facts, in brief, are as under:

The agricultural land bearing Survey Nos. 171 to 184, 214, 217 and 284 admeasuring 17.18 acres situated at Village Bag Sevania, Tehsil Huzur, District Bhopal, was recorded in the name of Late Padam Singh as a Bhoomi Swami. In the aforesaid land, late Padam Singh was having 1/4th share. As the said land was covered by the Urban Land (Ceiling and Regulation) Act, 1976 (for convenience sake, hereinafter referred to as ‘ULC Act’) Late Padam Singh has filed declaration as contemplated under the provisions of the ULC Act. The competent authority has determined an extent of 16000.32 square meters of land as vacant land and the same was declared surplus. Consequent to passing of final orders by the competent authority, a notification under Section 10(1) of the ULC Act was issued on 16.09.1983 and the notification as contemplated under Section 10(3) of the ULC Act was published in the Madhya Pradesh Gazette, Part-III dated 20.01.1984.

3. It is the case of the appellant herein that after following the necessary procedure contemplated under the ULC Act, possession of the surplus land was taken. Thereafter, the revenue entries were corrected showing the State as owner to the extent of the surplus land declared by the competent authority. It is also the case of the appellant that as the possession was already taken prior to coming into force of the Urban Land (Ceiling and Regulation) Repeal Act 1999 (for convenience sake, hereinafter referred to as ‘Repeal Act’) the said land was allotted for the purpose of constructing dwelling houses to the poor.

4. The respondent herein had filed suit for declaration and permanent injunction on 09.09.2003, claiming himself to be the sole heir and adopted son of Late Padam Singh. The relief in the suit reads as under:

“(1) That the surplus land of 16000.32 square meters which has been declared surplus, declaration be exempted under the Urban Land (Ceiling and Regulation) Act, 1976 because possession has not been taken.

(2) That the defendant be restrained from interfering with the possession of the respondent.”

5. The Trial Court i.e. XII Civil Judge, Class-II, Bhopal, by the judgment and decree dated 24.12.2004, decreed the suit on the ground that possession has not been taken, before the Repeal Act has come into force. Trial court also granted consequential relief restraining the appellant herein from interfering with the possession of the respondent. As against the judgment and decree passed by the trial Court, the matter was carried by way of first appeal, by the appellant, before the IV Additional District Judge, Bhopal and the Appellate Court has dismissed the appeal by the judgment and decree dated 23.07.2005. As against the same, the appellant has carried the matter by way of Second Appeal before the High Court. The Second Appeal is also dismissed by the impugned judgment and decree dated 08.11.2006.

6. The aforesaid impugned judgment is questioned in this appeal mainly on the ground that after necessary notifications were issued under Section 10 of the ULC Act, appellant has taken possession and utilised the subject land for construction of houses for the poor by spending huge amounts. It is the case of the appellant that the respondent has not questioned the orders passed by the competent authority declaring the land as surplus land, it is not open to seek declaration by the respondent-pl