Plaintiffs must prove their title and that of their vendor, unchallenged orders for eviction can bar suits under Section 34 of the Specific Relief Act, and shifting the case through an amendment may prejudice the opposing party.

Hon'ble Mr. A.K. Shrivastava, J.

1. This is plaintiff's first appeal since their suit for declaration and injunction has been dismissed by learned Trial Court.

2. The facts necessary for the disposal of this appeal lie in narrow compass. Suffice it to say that a suit for declaration and injunction in respect of a house, the description whereof has been mentioned in the plaint and which is the subject matter of the suit, has been filed by the plaintiffs against the defendants/respondents on the averments that they have purchased the suit property from Mohammad Sabir on 27-7-1990 and 16-2-1990 by two registered sale-deeds (Exhs. P-1 and P-2) and entered into possession of the suit property. Further the case of the plaintiffs is that their vendor purchased the suit property from Qamal Abbas Khan who was the surviving heir of Musharraf Jahan Begum, the owner of the suit property vide registered sale-deed dated 2-12-1986 and thus, they are the owner of the suit property, but, the respondents/defendants are trying to interfere into their possession. It is the further case of plaintiffs that Sub-Divisional Officer/Additional District Magistrate vide order dated 5-10-1991 in Case No. 10-A/68/1991-92 by holding that the suit property is Government property, has directed to evict the plaintiffs and hence, the present suit has been filed.

3. The plaint averments were refuted by the defendants by filing written statement. Their stand is that the suit property is owned by the Government and has been recorded in the revenue record as Nazul land, therefore, not only the plaintiffs but their predecessors were also not the title holder of the suit property and, therefore, status of the plaintiffs is that of a tress-passer only and rightly the order has been passed by the Sub-Divisional Officer directing them to evict the suit premises.

4. Learned Trial Court on the basis of the averments made in the plaint and denial in the written statement framed necessary issues and after recording the evidence of the parties dismissed the suit.

5. In this manner, this appeal has been filed by the plaintiffs.

6. It has been put forth by learned Counsel for the appellants that suit property was owned by Musharraf Jahan Begum whose heir sold the property to the vendor of the plaintiffs and thus, the title of the plaintiffs has been proved. Learned Counsel submits that plaintiffs have not only proved their sale-deeds but have also proved the sale-deed of their vendor, hence, they are the title holder of the suit property, this has been emphatically proved. It has also been put forth by learned Counsel that if the land is in the vicinity of the Municipality, the provisions of Section 248 of the M.P. Land Revenue Code, 1959 (hereinafter referred to as "the Code") are not attracted and in this regard he has placed reliance on the Division Bench decision of this Court Sind Mahajan Exchange Ltd., Lashkar Vs. State of M. P. and another, 1980 LJL 581.

7. Two applications; I.A. No. 4268/1996 under Order VI Rule 17, CPC and I.A. No. 4222/1996 under Order XLI Rule 27, CPC are also filed before this Court. Learned Counsel for the appellants has addressed on these two applications also and has submitted that by allowing these two applications the case be remanded back to learned Trial Court.

8. On the other hand, Shri Yashpal Rathore, learned Counsel appearing for the respondents/State argued in support of the impugned judgment.

9. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed.

10. So far as the contention of learned Counsel for the appellants that since the land is in the Municipal area, the provisions of Section 248 of the Code are not applicable is concerned, the entire argument is based on the pivot of the dictum laid down by the Division Bench of this Court Sind Mahajan (supra), which has been reversed by the Supreme Court State of M.P. and another Vs. Sind Mahajan Exchange Ltd., 1999 RN 328. Hence, this, conte