The main legal point established in the judgment is the proof of adverse possession by the Defendant, as well as the legal principles related to the distinction between tenure rights and tenancy rights, and the presumption as to entries in land records.

Arun Mishra, J.

1. This second appeal has been preferred by the Plaintiff aggrieved by the judgment and decree passed by the Court below affirming the dismissal of suit filed by him by the trial Court.

2. Plaintiff filed a suit for permanent injunction for restraining interference by the Defendant No. 1 in his possession over agricultural land comprised in Survey No. 470 area 0.742 hectare alleging himself to be Bhumiswami. Defendant was trying to take possession over a portion of the said survey number in an illegal manner. Demarcation proceedings were drawn and boundaries were duly marked.

2A. The Defendant No. 1 in the written statement denied the plaint allegations and contended that over a part of survey No. 470, area 0.105 hectare towards the northern side the Defendant was in possession, but during pendency of the suit Plaintiff has forcibly taken possession under the guise of an interim prohibitory injunction and the same be ordered to be restored. Thus, counter claim was filed under Order 8, Rule 6A, Code of Civil Procedure Code. It was further contended that possession was continued from the time of his father and for more than 30 years. The Defendant's possession and title over rest of survey No. 470 was not disputed. It was contended that the Defendant had remained in possession over the land in question. As the possession has continued open in derogation to the interest of the Plaintiff for more than 30 years, right of Bhumiswami has been acquired by the Defendant and no right, title or interest of the Plaintiff remain which had come to an end.

3. Plaintiff filed reply to the counter claim. He denied the claim and contended that he has not dispossessed the Defendant and he is continuing in possession.

4. The Trial Court vide its judgment and decree dated 23-8-1993 decided issue No. 3 in favour of the Defendant and held that Defendant has perfected his right of Bhumiswami by adverse possession. Declaration was granted and possession was directed to be restored to the Defendant and the Plaintiff s suit for injunction was dismissed.

5. Aggrieved by the judgment and decree passed by the learned trial Court Plaintiff preferred a first appeal before the III Additional District Judge, Vidisha. The appeal has been dismissed. The Appellate Court has categorically found that possession continuously from the year 1967 to 1989 was that of Defendant Krishnapal Singh. It was for more than 12 years and amounts to adverse possession. Thus right of Bhumiswami has been perfected by the Defendant but the Plaintiff dispossessed him during pendency of the suit. Thus, the judgment and decree passed by the trial Court has been affirmed. Hence the present successive appeal has been preferred by the Plaintiff.

6. The appeal was admitted by this Court on 5-3-1997 on the following substantial questions of law:

(1) Whether after recording a finding that Plaintiff is owner and in possession of the suit lands, the counter claim of Defendant on the basis of adverse possession can be decreed?

(2) Whether in the absence of any ingredients of pleadings and evidence in respect of adverse possession the Defendant's counter claim for adverse possession can be decreed?

6A. The Learned Counsel for the Plaintiff-Appellant has urged that it is a case where both the Courts below have committed grave error of law while dismissing the suit and in finding that Defendant had perfected title by adverse possession. His submission is that disclaimer of the title is not borne out from the evidence adduced. He has submitted that long possession is not necessarily adverse possession. The counsel has relied on the deposition of Defendant that he (the Defendant) was treating the land to be his own to contend that Defendant ought to have treated the land to be of the Plaintiff and then ought to have asserted his title in order to constitute adverse possession. It is his submission that possession, if any, was that of a trespasser. He further submitted that entries of po