The continuous possession for over twelve years before a certain date conferred certain rights under section 5 of the Zamin-dari Abolition Act, and the relevance of the revenue record for determining rights was emphasized.

T.S. Doabia, J.

1. This appeal has come to be filed under the following circumstances:

A suit was filed by the present appellants. It was indicated that in survey number 135 there is a Mandir of Lord Hanumanji. It was also stated that there was a double storey building. The further plea taken was that in survey number 136, there are Muries (statutes of other dielies). It was further pleaded that in survey numbers 137. 138 and 139 there is a boundary wall and there are gates in existance. It is on this basis, an argument has been raised that the Courts below should have examined the matter under section 5 of the Madhya Bharat Zamin-dari Abolition Act. Samvat 2008 (hereinafter referred to as the Act) and not under any other statutory provision.

2. The revenue papers which were brought on the record of the case were for samvat 2002 to 2006, 2008 and 2010 to 2013. The relevant record does indicate the existance of a temple.

3. The argument of the learned counsel for the plaintiff/appellants was that the case should have been examined in terms of section 5 (1) (f) and 5 (b).

4. There appears to he some merit in the contention of the learned counsel for the appellants. A person in continuous possession for over twelve years before 2nd of October, 1951 was conferred certain rights vis-a-vis houses, gardens, wells, etcs. as mentioned in section 5 of the Act. As indicated above, the Court below has not addressed itself to this aspect of the matter. The appeal is accordingly allowed and the matter is remanded to the first appellate Court who would re-examine the matter and record a finding as to whether the case falls under section 5 of the Act. The State would be at liberty to place on record, the revenue record for samvat 2007. The state may also be permitted to bring on the record any other evidence. As a matter of fact, the prepondance of judicial opinion is that the record of samvat 2007 is the relevant for the purpose of determining the rights under the aforementioned statute. Some how or the other, this record has not been placed on the Court file.

5. Another argument raised by the learned counsel for the plaintiff/appellant is that in case record of samvat 2007 is not available then the earlier and previous entries can be seen and be also examined. This argument is based on the decisions reported as follows :

(i) Chhitoo v. Sakharam, 1981 JLJ 487; and

(ii) Devi Singh v. Board of Revenue for Rajasthan and others, (1994) 1 SCC 215.

6. The Court below would examine this aspect of the matter in the light of the aforementioned judgments.

7. This appeal is accordingly allowed and the matter is remanded to the first appellate Court. The parties to appear before the Court below on 20th of October, 1997.