JUDGMENT :

Sanjay K. Agrawal, J.

1. The substantial question of law involved, formulated and to be answered by this Court in this defendants' second appeal is as under:--

"Whether the lower appellate Court has committed illegality in reversing well reasoned judgment and decree passed by the trial Court without there being any evidence of ownership of the respondents over the property in dispute?"

The imperative facts required for determination of above stated substantial question of law are as under:--

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]

2. Plaintiffs-Dular Singh and Loknath filed a bare suit for permanent injunction stating inter-alia that the suit tank/land bearing khasra No. 46 area 0.88 acres is owned by them in their bhumiswami rights, in which the plaintiffs names have been recorded pursuant to revenue proceedings and rin pustika has also been issued in their favour. It was further pleaded that they are exclusive title holder and possession holder of the suit tank/land. They also stated that in the suit tank/land, defendant No. 2-Sub-Divisional Officer (Irrigation) has started dumping clay without leave of the plaintiffs despite notice having been issued to him and therefore, the defendants be restrained from dumping and collecting clay on the suit land by issuance of permanent injunction restraining the State and the Sub-Divisional Officer (Irrigation).

3. The defendants jointly filed their written statement before the trial Court stating inter-alia that the suit land is embankment of a tank and khasra No. 46 has been vested with the State Government in revenue proceedings initiated by the Sub-Divisional Officer (Irrigation) under Section 251 of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter called as "Code") on 9.5.68 and they are in possession of the suit tank/land, as such, suit is liable to be dismissed.

4. The trial Court by its judgment and decree dated 22.12.93 dismissed the suit holding that the suit tank/embankment is vested with the State Government under the provisions contained in Section 251 of the Code and the plaintiffs are not in possession of the suit tank/land.

5. On appeal being preferred by the plaintiffs, the First Appellate Court held that it is admitted position on record that the suit tank is vested with the State Government under Section 251 of the Code, but further held that the suit tank is not vested with the State Government in accordance with the provisions contained in Section 251 of the Code as interested persons (plaintiffs) were neither noticed nor heard and the suit tank is not unoccupied land, therefore, vesting of tank (embankment) is bad and granted decree in favour of the plaintiffs.

6. Questioning legality and validity of the judgment and decree passed by the First Appellate Court, this second appeal under Section 100 of the Code has been filed by the appellants/defendants, in which substantial question of law has been framed by this Court, which has been set-out in the opening paragraph of this judgment.

7. Mr. Arun Sao, learned Deputy Advocate General for the appellants/defendants, would submit that learned First Appellate Court having held that the suit tank (embankment) is vested with the State Government under Section 251 of the Code is absolutely unjustified in further holding an enquiry as to whether the order of vesting is legal and valid or not as the suit was for bare permanent injunction. Therefore, for want of pleadings, issues framed and evidence led in that behalf, the suit for permanent injunction ought not to have been converted into suit for title, which is clearly not permissible in view of decision rendered by the Supreme Court in Anathula Sudharkar Vs. P. Bitchi Reddy (dead) by LRS. and others (2004) 6 SCC 325. He invited attention to para 21(c) of the said report and according to him, substantial question of law deserves to be answered in favour of the defendants an