1. This second appeal was filed by Ramnarayan who was arrayed as defendent No. 1 in the suit having lost from two Courts below. During the pendency of this appeal he died and present appellants are his L.Rs.

2. The plaintiff (Respondent No. 1, herein) Chunnilal filed a simplicitor suit more than 31 years ago for possession and removal of encroachment made by defendant No. 1 stating in the plaint that Khasra No. 144/3 area 5 acres has been reserved for ‘khalihan’ and the same is also recorded in Wajib-Ul-Arz and Nistar Patrak. According to the plaintiff, defendants No. 2, 3 and 4 namely Amardas, Smt. Amrawati and Smt. Irawati (respondents No. 2 to 4 herein this appeal) are ‘Bhumiswami’ of said Khasra No. 144/3. It has also been pleaded by amending the plaint that plaintiff is also using the ‘khalian’ for storing his agricultural produce and he is having easementary right on that area of land in which ‘khalian’ exists. However, it is pertinent to mention here that the area and dimension of ‘khalian’ has not been mentioned in the plaint. Further it has been pleaded in para 4-A of the plaint that ‘khalian’ is being used from 15th October to 15th June and thereafter the ‘khalian’ is removed. For the rest of the period of the entire year ‘Bhumiswami’ viz defendant No. 2 to 4 (respondent No. 2 to 4) uses the land for their cultivation since they are the ‘Bhumiswami’ of that land.

3. Further it has been pleaded in para 5 of the plaint that defendant

No. 1 whose L.Rs. are present appellants have encroached upon ‘ka’ ‘kha’ ‘ga’ and ‘gha’ portion marked in the map admeasuring 30 paces by 30 paces and has grown up bushes there. Hence, it has been prayed that the encroachment made by defendant No. 1 be removed and obstructions of the bushes which he has erected be also removed and further the possession be delivered to the plaintiff.

4. The defendants No. 1 filed separate written-statement while other defendants No. 2, 3 & 4 who are the ‘Bhumiswami’ filed their separate written statement and they refuted the plaint averments.

5. Learned Trial Court framed necessary issues and after recording evidence decreed the suit and first appeal which was filed by defendant No. 1 has also been dismissed by impugned judgment and decree.

6. In this manner, this Second Appeal has been filed by defendant No. 1who died during the pendency of this Second Appeal and the present appellants are his L.Rs.

7. This Court on 6.1.1997 admitted the appeal on the following substantial questions of law :-

1. Whether in view of Ex. P-1, the respondent No. 1 Kunjilal could claim any easementary right over the suit land?

2. Whether in view of pleadings of the parties that the suit land is recorded as khalian in the Nistar Patrak, the suit was maintainable in view of section 131 of M.P. Land Revenue Code?

8. Vehmentally it has been put forth by Shri Vikram Johri, learned counsel for defendant No. 1-appellants that if the provisions of section 131 of M.P. Land Revenue Code, 1959 (in short ‘Code) as well as a dictum laid down by the Division Bench of this Court Nathuram v. Siyasaran, 1969 JLJ 115, is tested on the present factual scenario and pleadings of the parties as well as all the documents and evidence which are placed on record, it would reveal that plaintiff has filed this civil suit which is not maintainable. Indeed, he should have gone to the Court Tehsildar under section 131 of the Code in view of Division Bench decision of Nathuram (supra), hence, it has been prayed by him that since the civil suit is not maintainable, the same be dismissed.

9. By inviting my attention to material document Ex. P-1 which is certified copy of ‘Wajib-Ul-Arz’ as well as ‘Nistar Patrak’ it has been submitted by learned counsel that the suit property has been endorsed as ‘Khalian’ in this document and if that would be the position, the plaintiff cannot claim any easementary right for the simple reason that in view of section 237 of the Code all the inhabitants have right to use that par