JUDGMENT

1. This second appeal has been filed against the judgment and decree dated 30.8.1997 passed by 3rd Additional District Judge, Vidisha in Civil Appeal No. 82-A of 1994, thereby setting aside the judgment and decree passed by Civil Judge, Class 1, Kurwai, Distt. Vidisha in Civil Suit No. 4-A/1984.

2. The original Plaintiff Gopal Rao, who died during the pendency of the civil suit and was substituted by his legal representatives, had filed a suit for declaration of title and permanent injunction which was decreed by the trial Court and it was held that the plaintiff is the owner and in possession of the land in dispute and permanent injunction was issued against the defendants No. 1 to 3/respondents No. 2 to 4.

3. The necessary facts for disposal of the present appeal in short are that the original Plaintiff Gopal Rao, filed a suit for declaration of title and permanent injunction. Original Plaintiff Gopal Rao expired during the pendency of the civil suit and accordingly, the appellants were brought on record being the legal representatives of Original Plaintiff Gopal Rao. It is the case of the plaintiffs/appellants that Narayan Rao, father of original plaintiff Gopal Rao, was the Jagirdar of the land in dispute. It was pleaded that the disputed property i.e., Survey No. 98 area 43 Bigha, Survey No. 332 area 1 Bigha 1 Biswa, total area 44 Bigha and 1 Biswa was in possession of the original plaintiff Gopal Rao, and after his death, the plaintiffs who were brought on record came in possession of the same. It was pleaded that earlier Roopchand was in possession of the land in dispute in the capacity of an agriculturist. Roopchand expired in the year 1937. Earlier the land was under the control and supervision of Court of Wards, Barwai and since, huge rent was outstanding against Roopchand and as he was not in a position to repay the same, therefore, he surrendered the land and under the orders of the His Highness, the property in dispute was confiscated by Court of Wards. The disputed land was thereafter given on "patta" to Narayan Rao, the father of the original plaintiff and this fact is also known and accepted by the defendants, and from the date of the "Patta", the predecessor in title and now the plaintiffs are in possession of the land in dispute. At the time of abolition of Zagirdari, Narayan Rao was in cultivating possession of the land in dispute and as per the provisions of Madhya Bharat Jagirdari Abolition Act, Narayan Rao became the Pakka Tenant and after his death, the original plaintiff Gopal Rao became the Bhumiswami and now the plaintiffs/appellants are in possession of the land in dispute, in the capacity of Bhumiswami. It was further pleaded that the rights of Roopchand had already extinguished during his lifetime and therefore, none of his legal representatives has any right or title in the land in dispute. The defendants had filed a civil suit in the year 1959 for declaration of their title, however, the plaintiffs were not impleaded as party and the decree was obtained by impleading one Motilal as a defendant. It was pleaded that the judgment and decree passed against Motilal is not binding on the plaintiffs. The plaintiffs have filed the present suit in the light of the direction given by the High Court. It was further pleaded that Narayan Rao remained in possession of the land in dispute by virtue of "Patta" dated 14.5.1945 given by Superintendent Court of Wards. Thus, the suit was filed for declaration of title and permanent injunction and in the alternative, it was also prayed that in case, if the trial Court comes to a conclusion that the plaintiffs are not in possession of the land in dispute, then the decree for possession be passed.

4. The defendants No. 1 to 3/respondents No. 2 to 4 filed their written statement and pleaded that Narayan Rao was not the Jagirdar but was the Superintendent, and was in Fiduciary position. The possession of the plaintiffs was denied and it was pleaded that the defendan