1. This is plaintiff’s second appeal who has lost from both the Courts below since his suit for declaration of Bhumiswami right and injunction has been dismissed by learned Trial Court and the first appeal has also been dismissed by the impugned judgment and decree.

2. The facts necessary for the disposal of this second appeal lie in narrow compass. Prabhulal (original plaintiff) whose L.Rs. are present appellants filed civil suit for declaration of Bhumiswami right and injunction in the trial Court pleading in the plaint that he was Zaminidar of erstwhile Gwalior State. The Gwalior State was merged in Madhya Bharat Government. On 2.10.1951 “Madhya Bharat Zamindari Abolition Act Samvat 2007” (in short Abolition Act) came into force w.e.f. 2.10.1951. The suit property which is agriculture land and the description whereof is mentioned in the plant which is the subject matter of the suit was being possessed by plaintiff’s father Bhulaji and it did not vest in the State. The plaintiff Prabhulal along with his mother Jadavbai Wd/o Bhulaji filed a civil suit in the Court of Civil Judge Class-II Agar (Civil Suit No. 50-A/1969) earring State of M.P. and its functionaries as well as certain other persons as defendants for declaration of Bhumiswami right and injunction claiming in the earlier suit that the land in question did not vest in the State Government and on coming into force of M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code) they became Bhumiswami. However, the said civil suit was dismissed on 7.4.1973 and the first appeal which was filed by plaintiffs was dismissed and the same result met in the second appeal filed by them which was also dismissed on 20.11.1989.

3. In para 3 of the plaint specifically it has been pleaded in the present suit that although his possession was obtained by the then Madhya Bharat Government on 2.10.1951 but on the same date he again encroached upon the lands in question and since then he is possessing the same as owner in the knowledge of the State Government and his possession is peaceful without interruption for a period of more than 30 years and still he is in possession of the suit property.

4. In para 8 of the plaint specifically it has been pleaded that the name of plaintiff has been recorded as tresspasser in the revenue record and when plaintiff requested Patwari of the village to record his name in the column of Bhumiswami he did not agree and he also gave threat to dispossess him on 17.1.90. Hence, a suit for declaration and injunction has been filed by the plaintiff. The cause of action has been pleaded to be 17.1.90 after completion of 30 years of his possession, as according to plaintiff Bhumiswami right has been accrued in him by way of adverse possession. Hence, it has been prayed that plaintiff be declared as Bhumiswami on the basis of adverse possession and a decree of possession be also granted against the defendants not to interfer in his possession.

5. The State of M.P. filed written statement and denied the plaint averments. However, the factum of possession of plaintiff has been admitted in para 3 as well as in para 8 of the written statement although according to the defendant his possession is that of a trespasser. In special plea it has been pleaded by defendant that the present suit is barred by the dictum of res judicata because earlier civil suit for declaration of Bhumiswami right and injunction was filed by the plaintiff which was dismissed and the judgment and decree of dismissal was maintained up to this Court in Second Appeal.

6. Learned Trial Court framed necessary issues and tried issue No. 6 which is in respect of Res judicata was decided as preliminary issue. Vide order dt. 10.12.1991 the learned trial Court dismissed the suit holding that a bar of Res judicata is there in the present case. The plaintiff filed first appeal before learned Appellate Court which has been dismissed by the impugned judgment and decree.

7. In this manner this second a