JUDGMENT

Sanjay K. Agrawal, J. - The substantial question of law involved, formulated and to be answered in this second appeal preferred by the appellants/defendants is as under:-

"Whether both the Courts below were justified in holding that plaintiff has acquired 'bhoomiswami rights' over the suit land under the provisions contained in Chhattisgarh Land Revenue Code, 1959 and he is entitled for declaration of title and permanent injunction restraining the State from interfering with their possession by recording a finding which is perverse to the record ?"

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

2. The Superintendent of erstwhile State of Rajnandgaon had executed a patta in favour of Shri Ramsahay Shukla, father of the plaintiff, for cash consideration of Rs. 4600/- only up to 1943 to 1946 under the Mahakaushal Act, 1943 for the purpose of development of village Latmeta having total 608 acres of land and thereafter the land was distributed among the nearby cultivators and they were in continuous possession of the part of land given to them for cultivation. Plaintiff-Ramanand Shukla had retained some land bearing Khasra Nos.31/1 and 216/1, total area 27.25 acres as per Schedule appended with the plaint. In the meanwhile, the M.P. Land Revenue Code came into force w.e.f. 2nd October, 1959 giving the status of "land owners" against the land which they were in occupation or were cultivating the land personally. Thereafter, the jurisdictional patwari had submitted the encroachment report against the plaintiff before the Additional Tahsildar being Revenue Case No.105- A/68/1981 against original plaintiff Ramanand Shukla and that was taken cognizance of and by order dated 20.3.1984 the plaintiff was directed to remove encroachment on the disputed land, fine of Rs. 1500/- was also imposed upon him. In the meanwhile, the plaintiff preferred an application before the SubDivisional officer, Rajnandgaon under Section 57(2) of the Land Revenue Code, 1959 (hereinafter called as 'Code'), which was registered as Revenue Case No.3A/1/1983-84 and that application was rejected by the SDO by order dated 17.1.2001. The plaintiff preferred appeal against that order before the Additional Collector, Rajnandgaon, which is said to be pending at the time of filing the suit as per para-4 of the plaint. It is further case of the plaintiff that on 5.7.2000 the Naib-Tahsildar, Khujji issued proclamation for distribution of disputed land bearing Khasra Nos.31 and 216/1, total 27.25 acres under the provisions of the Code and has invited objection against the proposed allotment of a part of land belonging to the plaintiff in favour of respondents No.8 to 12, leading to filing of the suit for declaration of title and permanent injunction by the plaintiff (who died during the pendency of the suit stating) inter-alia that he is only title-holder and possession holder of the suit land and he being title-holder of the suit land under section 57(2) of the Code, he be declared title-holder of the suit land appended with the plaint and also he be granted decree for permanent injunction restraining the defendants from interfering with his peaceful possession.

3. The official defendants filed their written statement and denied the averments made in the plaint stating inter-alia that in 1979-80 the suit land was surveyed and adhikar abhilekh was prepared and Khasra Nos.31 and 216, area 30.50 acres was declared as government grass land and therefore, the suit land being government land, the State is competent to use it for public purpose and the plaintiff has no right and title over the suit land.

4. The trial Court upon evaluation and after appreciation of oral and documentary evidence available on record, by its judgment and decree dated 26.8.2006 held that the plaintiff is in possession of the suit land for last 58 years and under Section 57(2) of the Code,