1. This writ petition has been filed against the order of the Board of Revenue dated 4.10.2001 by which the Board of Revenue allowed the revision of the respondent No.5 and set aside the order of the Additional Commissioner dated 28.12.1999.

2. The facts in brief as stated in the writ petition are that the respondent No.5 had moved the application dated 15.11.1984 before the Tahsildar under section 190 of the M.P. Land Revenue Code (for short 'the Code') stating that the petitioner who was the Bhumiswami of the land in question had given the land on lease for agricultural purposes in 1977 to the respondent No.5 on 'Munafa' of Rs.1,000/- and he continued in possession from 1977-78 to . 1984-85 as Cultivator in possession in his capacity as 'Munafedar', therefore, Bhumiswami rights accrued to him. Petitioner filed reply to the application denying the averments made in the application and taking the stand that the respondent No.5 is his cousin brother and since the petitioner was suffering from diabetes and was taking treatment in Mumbai from 1977 to 1980, therefore, he had given the land to the respondent No.5 for cultivation and no 'munafa' was received by him. The petitioner denied that any Bhumiswami right accrued to the respondent No.5 under section 190 of the Code.

3. The Additional Tahsildar passed the order dated 10.12.1986 holding that the rights of occupancy tenant had accrued to the respondent No.5 under section 185 (1)(c) of the code. The Tahsildar also found that case of the petitioner did not fall under section 168 (2) of the code since disability alleged by the petitioner was not proved. The Tahsildar finally held that since, the rights of occupancy tenant accured to the respondent No.5 under section 159 of the Code, therefore, on deposit of the stipulated amount Bhumiswami rights would accrue to the respondent No.- 5.

4. The appeal filed by the petitioner against the order of the Tahsildar was dismissed by the Sub Divisional Officer by order dated 26.10.1987 against which the petitioner preferred second appeal before the Additional Commissioner. The Additional Commissioner by order dated 28.12.1999 allowed the second appeal filed by the petitioner holding that in the Khasra there is no lawful entry about the respondent No.5 being the occupancy tenant nor status of the respondent No.5 as occupancy tenant has been admitted. The Additional Commissioner relying upon one of the judgment of this Court took a view that provisions of section 190 of the Code can be invoked when a person claiming Bhumiswami status is admittedly an occupancy tenant because there is no provision in the Code giving power to any revenue officer to confer status of occupancy tenant. Against this order the respondent No.5 filed revision petition before the Board of Revenue. The Board of Revenue by the impugned order dated 4.10.2001 allowed the revision petition inter alia holding that the view of the Additional Commissioner that section 190 can be invoked only where the status of a person as occupancy tenant is admitted is incorrect.

5. Learned counsel appearing for the petitioner submitted that since under the M.P. Land Revenue Code the revenue authorities have not been conferred with any power to determine the status as occupancy tenant, therefore, under section 190 Bhumiswami rights can be conferred only in cases where the status of occupancy tenant is not in dispute. In support of this preposition he has relied upon some of the judgments of this Court. He further submitted that it is a case covered by section 168. Since the petitioner was suffering from diabetes, therefore, he had given the land for cultivation to the respondent No.5 without any consideration. He submitted that the doctor's evidence, which was adduced by the petitioner in respect of the disability, has not been properly appreciated and the status of the respondent No.5 was only that of a caretaker. There is also no receipt showing that he had made any payment to th