( 1. ) THIS appeal has been filed by plaintiff who has lost from both the Courts below.

( 2. ) A civil suit for possession, damages and permanent injunction has been filed by the plaintiff against respondent No. 1-Dhannulal. Defendant No. 2-State of Madhya Pradesh is a formal party in the suit.

( 3. ) ON bare perusal of the plaint averments, it is gathered that a patta was granted to the plaintiff on 1st July, 1965 by the State Government. The plaintiff has also pleaded that three acres of the land was purchased by him on 3-4-1954 from Seth Kanhaiyalal and thereafter he became owner of that land. It has also been pleaded in Para 2 of the plaint that since the year 1954 the plaintiff is possessing and cultivating the suit land and is paying land revenue. It has been further pleaded that in the month of June, 1986 defendant No. 1 illegally dispossessed the plaintiff and encroached the suit property. In this manner, the plaintiff has filed suit for possession, damages at the rate of Rs. 1,000/- per year from the date of filing of the suit. The plaintiff has further prayed that defendant No. 1 be restrained from interfering in his possession.

( 4. ) DEFENDANT No. 1 filed written statement and denied the plaint averments. In Para 3, it has been pleaded by him that since 1972-73 he (defendant No. 1) is possessing the suit property as tenant and continued as such upto the year 1984 and hence Bhumiswami rights are accrued in him. ( 5. ) THE Trial Court framed necessary issues and issue No. 4 was framed in regard to the maintainability of the suit. The Trial Court treated this issue to be preliminary issue and vide order dated 27-6-1990 held that the suit is not maintainable in view of Section 257 of M. P. Land Revenue Code, 1959 (in

short the Code) on the ground that occupancy tenancy rights were accrued to the defendant and the Naib Tehsildar, Sohagpur on the application filed by defendant-Dhannulal held that under Section 169 of the Code occupancy tenancy rights are accrued to him and, therefore, by operation of law he has become Bhumiswami and eventually directed to record his name as Bhumiswami in the revenue record.

( 6. ) INDEED, the plaintiff did not seek any relief in the plaint challenging the order of Naib Tehsildar and the Sub-Divisional Officer.

( 7. ) ON going through the order passed by Naib Tehsildar, dated 9-12-1987, which was passed between the parties, it is gathered that occupancy tenancy rights were accrued to the defendant No. 1 and as such Naib Tehsildar, Sohagpur passed order dated 9-12-1987 in favour of defendant No. 1 holding that occupancy tenancy rights were accrued to him. This order has been affirmed by the Sub Divisional Officer in appeal as the appeal of plaintiff was dismissed on 30-4-1988.

( 8. ) SINCE there is a clear bar of filing civil suit under Section 257 of the Code, according to two Courts below the civil suit is not maintainable.

( 9. ) THIS Court on 30-11-1992 admitted this second appeal on the following substantial question of law: Whether the suit as filed was maintainable in the Civil Court ?

( 10. ) I have heard Shri A. G. Dhande, Sr. Advocate with Shri Dharmendra Soni, Advocate for the appellant and Shri A. L. Patel, Govt. Advocate for respondent No. 2 and perused the judgment passed by two Courts below. ( 11. ) REGARDING Substantial Question of Law: In the present case, the plaintiff is seeking possession of the suit property. He has also claimed damages and a decree of injunction. Nowhere in the plaint, the plaintiff has

sought relief of declaration of Bhumiswami right. Since the Revenue Court has held that occupancy tenancy rights were conferred to defendant No. 1-Dhannulal and eventually he became Bhumiswami, such a suit for ejectment of occupancy tenant in Civil Court is not maintainable, since there is a clear bar under Section 257 (k) of the Code. It has already been held by the Naib Tehsildar in its order dated 9-12-1987 that the possession of defendant as lessee is continuing for