The appellate court may correct the trial court’s decree but cannot set it aside without warrant if it maintains the substantive issues concerning land ownership and encroachment.

ORDER :

This second appeal under Section 100 of CPC has been filed against the judgment and decree dated 14.10.2016 passed by First Additional District Judge, Ashoknagar in Civil Appeal No.1-A/2016, by which judgment and decree dated 14.09.2015 passed by Fourth Civil Judge, Class-II, Ashoknagar in RCSA No.8-A/2014 has been reversed.

2. The appellants are the plaintiffs who have lost their case from the court below.

3. By order dated 16.03.2017, appeal has been admitted on following substantial question of law:

"Whether the first appellate Court erred in reversing the judgment and decree passed by the trial Court ignoring the pleadings raised by the appellants/plaintiffs in the plaint wherein the plaintiffs have specifically pleaded about the factum of ownership and possession of the suit property exclusively vested in the State Government ?"

4. The facts necessary for disposal of present appeal, in short, are that plaintiffs filed a suit in representative capacity for declaration of title, permanent injunction, as well as for removal of encroachment. It is the case of plaintiffs that survey Nos. 607, 610, 609, 606, 593, 605, 627, total area 2.155 hectares situated in Village - Koharwas, Tahsil - Isagarh, Distrtict - Ashoknagar is in the ownership and possession of the State Government. Aforesaid land is being used by plaintiffs as well as all the villagers. There are pits in survey No. 607, which is being used by plaintiffs and villagers for dumping their cow dung, waste material, etc.. Graveyard is situated on survey No. 610, which is being used by plaintiffs as well as villagers for cremation purposes. Government Well is situated in Survey No. 609 which is being used by plaintiffs and the villagers for fetching water for their personal use as well as for use of their cattle. Government pond is situated on Survey No. 606. On the northern side of Survey No. 606, there is a public way, and one government hand pump has been installed adjoining to Survey No. 605. One Well and platform of Heeraman Baba are situated by the side of the hand pump. Villagers as well as the plaintiffs are using the Well, hand pump, as well as the pond for their cattle, and they also offer prayer to Heeraman Baba. There is a government public road on Survey No. 593 going from Village - Banora to Village - Koharwas. Said public way is being used by villagers as well as by the plaintiffs for transporting their agricultural produce, for plying their vehicles, as well as for going from one place to another by walking. Public road situated on Survey No. 593 is being used by plaintiffs as well as by the general public for approaching the government pond, Well, hand pump situated in Survey No. 606. A public way going from Village - Koharwas to Village - Singpur is situated on Survey No. 627. This road is also being used by the villagers and plaintiffs for approaching the government pond. Similarly, a government public way is situated on Survey No. 727 which is being used by plaintiffs and the villagers. Aforesaid lands are in the ownership and possession of State Government, and for the last several decades, they are being used by the general public and plaintiffs. No one has any right or title over even a single piece of aforesaid land. It was pleaded that defendants No. 1 to 3, who are members of same family, have encroached upon 40x25 sq. f