JUDGEMENT

1/ Heard learned counsel for the appellants on the point of admission as well as on IA no. 5175/2019, which is an application filed under Order 41 Rule 27 read with section 151 of Code of Civil Procedure, 1908 ( hereinafter referred to “CPC”).

2/Present second appeal has been filed under section 100 of C.P.C being aggrieved by impugned judgment and decree dated 26/03/2019 passed by II Additional District Judqe, Barwani, District Barwani in Regular Civil Appeal no. 27/2017, whereby judgment and decree dated 17/02/2017 passed by II Civil Judge Class-I, Barwani, District Barwani in Civil Suit no. 24- A/2015 for declaration has been dismissed.

3/Brief facts of the case are that plaintiffs/appellants had preferred a civil suit for declaration of title over the disputed Iand of declaration of order dated 08/06/2015 to be null and void being illegal. It is contended by plaintiffs that the original plaintiff nos 1 to 4 were real brothers However due to death of plaintiff nos. 3 and 4, their legal representatives were taken on record. The plaintiffs owned and possessed the agricultural land in question situated at Village Budi Patwari, Halka No 2 ,Tehsil Pati. In revenue record of the year 1992=93 the said lands have been entered in the name of plaintiffs with an identifying descriptions as the lands were un-surveyed. The identifying description of disputed lands has been contained in the plaint viz Neem Wala Tukda, Semal Wala Tukdam Moyni Wala Tukda and Gharpas Wala Tukda with their respective areas. Plaintiffs are depositing the land revenue of the disputed lands and Bhu Adhikar and Rinn Pustika are in their name. Plaintiffs have been in continuous possession of the lands and have been cultivating the same. In the year 1994-95, respondents/defendants had undertaken the exercise of settlement of lands and had entered the survey numbers upon the disputed lands of plaintiffs. However, on account of error on the part of settlement officer the disputed lands got entered as Nakabil Kasht in the name of State Government. The above mentioned described lands have been marked with survey nos. 625, 626, 627 and 700. When plaintiffs came to know about the said error in the year 2012, they filed an application for rectification of the revenue record before respondent no. 2. The Revenue Inspector and the Patwari submitted their reports and prepared Panchnama that the disputed lands of plaintiffs have been entered in the name of State Government. The Tehsildar requisitioned the records of settlement proceedings undertaken in the year 1994-95, but it was unavailable. On the basis of the aforesaid, the Tehsildar vide order dated 08/06/2015 rejected the plaintiffs' application, therefore, they filed civil suit for declaration stating that they are owner of the suit lands and the order dated 08/06/2015 be declared as null and void.

4/Learned counsel for the respondent/s denied all the avernments described in the plaint and submitted their written statement by stating that as per the inquiry conducted by Patwari and the Revenue Inspector, plaintiffs had encroached the government land and accordingly, panchnama was prepared. Name of M.P. Government was duly mutated in the revenue record.

5/On the basis of the aforesaid pleading, the trial Court framed issues and directed both the parties to adduce their evidence. After recording evidence, the trial Court dismissed the civil suit. Being aggrieved by the same, plaintiffs preferred first appeal, but the same was also dismissed vide judgment and decree dated 26/03/2019. Being aggrieved by both the judgments and decrees passed by both the Courts below, present Second Appeal has been preferred before this Court.

6/Learned counsel for the appellants submitted that both the Courts below have committed error by ignoring the statutory presumption under section 117 of Madhya Pradesh Land Revenue Cod