1. The plaintiff applicant has instituted a suit for permanent injunction against the defendant-non-applicants in respect of land comprised in survey nos. 191, 192, 193 and 195 situate in Mauja Ghatampur in Tahsil Gwalior on the averments that the aforesaid land was allotted to him under section 62 of the MBLRT Act, 1950 (Act No. 66 of 1950). It is further alleged that in pursuance of that allotment order the Patta dated 28.7.1950 is stated to have been granted to the plaintiff-applicant. Then litigation in the revenue Courts between parties is stated to have remained pending for a number of years. The plaintiff has further alleged that on 11.6.1972 a notice was issued by the Tahsildar, Gwalior for giving delivery of possession of the aforesaid land to the plaintiff-applicant. This notice was served on non-applicant (contesting defendant Vijaisingh Rao) on 11.6.1972. It is also stated that on 12.6.1972 the Nazir of Tahsil in accompaniment of the Patwari of the village concerned went on the spot and effected delivery of possession of the suit land.

2. The learned counsel for both the parties admitted before the High Court that the order of mutation passed by the Tahsildar is subject to appeal which pending still in the Court of S.D.O.

3. It is true that a notice of order of delivery of possession was served on non-applicant No. 1 on 11.6.1972 but from perusal of the report of the Nazir pertaining to the delivery of possession on 12.6.1972, it is clear that there was enclosure around the suit-land in a door of which lock of the non-applicant No. 1 was hanging. I have gone through the report of the Nazir. It is nowhere stated that the lock was broken open and the actual delivery of the suit- land was effected. The procedure of delivery of possession is to be in accordance with that provided in Order 21, Rule 35 CPC. Neither in the Madhya Bharat Land Revenue and Tenancy Act, 1950 nor under any rules made thereunder, procedure for effecting delivery in pursuance of allotment order has been shown to be prescribed. By virtue of section 151 of MBLRT Act, 1950 in matters of procedure regarding which no express provision has been made in that Act, the procedure laid down in the Code of Civil Procedure in force for the time being has to be followed. The proceedings are said to be in pursuance of order of allotment passed by the Tahsildar sometime prior to 28.7.1953. As such the procedure to be followed in the execution of that order will be as provided in CPC. Taking the provision of section 38 of the M.P. Land Revenue Code, 1959 it will not in any case govern the situation, because section 38 of the MPLR Code applies to delivery of possession in pursuance of such orders which have been passed under that Code.

4. The learned counsel for the plaintiff-applicant relying on section 38 tried to argue that on 12.6.1972 Madhya Bharat Land Revenue and Tenancy Act, 1950 was not in force. Therefore, it is section 38 of the MPLR Code which will have to be followed in the matter of delivery of possession. I am afraid this contention too is not correct in view of the wordings employed by section 38.

5. Analysing the case from any angle the result is that proceedings for delivery of possession in the instant case were governed by the provisions of CPC and unless it is shown that the delivery of possession was in compliance with the provisions of CPC, it cannot be regarded to be valid and effective delivery of possession.

6. There is no report also of breaking open of the door as contemplated by the said provision. The use of the words "Bhumi Bata Kar" by indicating the land cannot be construed to mean actual delivery of possession by breaking open the lock of the door. It means only simply pointing out to the decree-holder the land. Beating of drum is also of no consequence in the matter of affecting actual delivery of possession. Such delivery of possession which is styled to be a symbolic delivery of possession by Courts below is not contemp