U.C. Maheshwari, J.

Aforesaid both the appeals are arising out of same judgment and decree dated 10-12-1992 passed by the Additional District Judge, Panna, M.P. in Civil Regular Appeal No. 55-A/92. Thus, both are being decided by the common judgment.

For the sake of convenience hereinafter the Appellant of Second Appeal No. 175/93 is said to be plaintiff while Appellant of Second Appeal No. 21/93 is said to be the defendant No. 2.

The facts giving rise to these appeals are that the plaintiff had filed a suit in the trial Court for declaration and possession of the agricultural land situate at village Kakarhati bearing survey No. 1801, 1814 and 2037/1. As per averments of the plaint initially these lands belonged to one Mangaliya who survived by his two sons namely Gani and Mahagoo. The partition had taken place in between them in presence of the panchas on 30-3-1972. According to it the land bearing survey No. 2037/1 was given to Mahagoo while the land bearing survey Nos. 1801 and 1814 was given to Gani. Although the land was not mutated in revenue record accordingly but both the brothers remained in their separate possession as per partitioned. After demise of Gani his two sons namely Sher Mohd. and Sheikh Mohd. had cultivated his land. It is further alleged by the plaintiff that in the old age of Mahagoo he was happy with the plaintiff. Therefore, he gifted his all movable and immovable properties including the aforesaid land to the plaintiff. This gift had taken place orally in 1979 subsequently on 12-2-1979 it was written down on papers thereafter, said Mahagoo died in February, 1979. As alleged after his demise the defendant No. 2 Ramratobaba and defendant No. 4 Gullabi son of Param had started some interference in the interest of the plaintiff. In 1980 the aforesaid plaintiff was dispossessed by them. In spite plaintiff objection the halka patwari had submitted a report to revenue Court that said Mahagoo died without any heirs. Consequently the said land was declared the Government land by order dated 15-9-1982 by virtue of Section 177 of the M.P. Land Revenue Code, 1959. But plaintiff remained Bhumiswami of such land.

It is further pleaded that the impugned suit was filed for declaring the aforesaid order dated 15-9-1982 as ab-initio void but simultaneously on grounds available against other defendants. The prayer was made against them for declaration and possession of the said land.

The public temple in the name of Gouri Shankar Mandir remained in existence since last many years on some part of survey No. 2037/1.

By filing written statement on behalf of defendant respondent-State of M.P. it was contended that concerning property was neither belonged to Mahagoo nor partitioned between Mahagoo and Gani. The aforesaid alleged gift/will by Gani in favour of plaintiff was also denied. The order of the Tahsildar in respect of vesting the land in the State was justified and prayed for dismissal of the suit.

In written statement filed on behalf of defendant Nos. 2 and 3 (appellant of S.A. No. 21/93 and Mohan), it was pleaded that the aforesaid land never remained the property of Gani and Mahagoo. The land bearing survey No. 2037/1, on which the old temple namely Gauri Shankar Mandir is in existence remained in possession with temple as its property. In any case the right of Bhumiswami had been perfected by its deity long back by adverse possession also but committing fraud during settlement Mangaliya had got endorsed his name over it in the revenue record while he had no right to it. Sher Mohd. and Sheikh Mohd. had also not having any right in it. According to khasra filed by the plaintiff the existence of such old temple has been shown in it. Thus, without impleading the temple or its deity the suit was not maintainable and liable to be dismissed on this count alone and prayed for dismissal of the suit.

The defendant No. 5 Sheikh Mohd. by filing his written statement has contended that the aforesaid land had remained joint prope