1. This second appeal has been filed by the appellants/plaintiffs under section 100 of the Code of Civil Procedure, challenging the judgment and decree dated 8.8.1996 passed in First Civil Appeal No. 73A/92 by Additional District Judge, Basoda, District Vidisha (M.P.), confirming the judgment and decree dated 30.11.1992 passed in Civil Suit No. 162A/91 Additional Civil Judge Class-2, Basoda, District Vidisha (M.P.).

2. Succinctly the facts of the case are that the appellant/plaintiffs filed a suit for declaration of Bhumiswami rights and permanent injunction against the respondent/defendant with regard to agricultural land bearing survey Nos.77, 83, 191, 195 and 799 (new survey nos. 37, 103 and 460), total area 83 Bigha 4 Viswa situated in village Enchada, Tahsil Nateran, District Vidisha (M.P.). The plaintiffs have been cultivating the disputed land since the time of their father who obtained that land as zamindari lease. The respondent/defendant had raised an objection that the plaintiffs are encroacher upon the disputed land and threatened to dispossess them on 1.5.1980 and 12.10.1980, while the appellants/plaintiffs have become Bhumiswami of the land in dispute after coming into force the M.P. Land Revenue Code because they became Pacca Krishak after abolition of Jamindari.

3. The respondent/defendant in his written statement admitted new survey numbers of disputed land and further admitted that father of original plaintiffs namely Nirbhay Singh and Pratap Singh were also Jamindar of Village Enchada before Maalgujari Abolition Act coming into force in 1951. The disputed land was not Khud-kashat land of the then zamindar in Samvat 2008 and it was recorded as Beed land in khasras in Samvat 2007-2008. Therefore, after coming into force the Maalgujari Abolition Act, 1951, the disputed lands were vested in the Government under section 4 of the Act. The disputed land was not recorded in the name of plaintiffs as Pacca Krishak and/or Bhumiswami. The plaintiffs are encroacher on the suit land, therefore, prayed that suit be dismissed.

4. The trial Court dismissed the suit. Thereafter, the learned lower appellate Court has also dismissed the appeal filed by the appellants/plaintiffs. Therefore, the plaintiffs/appellants have filed this present second appeal.

5. Original plaintiff Madan Singh died during pendency of this appeal on 4.2.2005 and his legal representatives are already brought on record.

6. This second appeal has been admitted vide order dated 2.4.1998 on the following substantial questions of law:-

(I) Whether the finding of the two Courts below are against the provisions of section 4(1) of the M.B. Regulation and Jagirdari Abolition Act, 1951 ?

(II) Whether the disputed land is exempted under sections 4, 5 (b) and 5 (c) of the M.B. Abolition of Jagirdari Act, 1951 ?

(II) Whether, the plaintiffs acquired Bhumiswami rights being in adverse possession for more than 50 years ?

7. Substantial questions No.1 and 2 relate to provisions of section 4 (1) of the M.B. Regulation and Jagirdari Abolition Act 1951 and sections 4, 5 (b) and 5 (c) of the M.B. Abolition of Jagirdari Act, 1951, therefore, they are considered together. The provisions of relevant sections are re-produced herein below:-

(4) Consequences of the resumption of Jagir lands; (1) As from the date of resumption notwithstanding any thing contained in any contract, grant or document or in any other law, rule, regulation or order for the time being in force, but save as otherwise provided in this Act.

(5). Private wells, trees, buildings, house- sites and enclousrs- Notwithstanding anything contained I the last preceding section -

(a) ................ ................

(b)

(i) all open enclosures used for agricultural or domestic purposes and in continuous possession (which includes possession of any predecessor in interest) for twelve years immediately before the date of resumption;

(ii) all open house-sites purchased for valuable consideration;

(iii) all private building