ORDER

Petitioners have filed this misllaneous petition under Article 227 of Constitution of India challenging order dated 12.01.2023 passed by 2nd Additional District Judge, Betul M.P. in M.C.A.No.174/2022.

2. Counsel appearing for petitioner submitted that respondents had filed an application under Section 250 of M.P. Land Revenue Code against petitioners for their eviction from land in question. Demarcation was carried out and petitioners were found to be in possession as per demarcation report dated 07.07.2017. Another application was filed by petitioners under Section 250 of MPLRC and demarcation report dated 28.02.2022 was also filed. In said demarcation report, petitioners were found to be in possession of property. It is submitted that trial Court considering the demarcation report and possession of petitioners over land in question passed an order of temporary injunction in favour of petitioners. Respondents challenged the said order in appeal before District Judge. Appeal was allowed vide order dated 12.01.2023.

3. Counsel appearing for petitioners assailed the order dated 12.01.2023 passed in appeal on grounds that petitioners are in possession of suit property. Respondents were trying to alienate the suit property and advertisement was given in local newspaper. In view of said facts, petitioner is having prima-facie case, balance of convenience in his favour and irreparable injury will be caused to them, if property is sold. The appeal Court had committed an error in not considering the said issue. Appellate Court had set aside the order of temporary injunction on the ground that plaintiffs have not clarified that they are in possession of which survey number and on which part of land and when said possession become adverse to that of defendants. Plaintiffs have not pleaded anything on said points, therefore, there is no prima-facie case in their favour. It is clear from demarcation report that petitioners are in possession over land in question though old khasra number and new khasra number has not been mentioned by them but land on spot remains the same and petitioners are in possession of the same, therefore, appellate Court committed an error in dismissing the application on said ground. It is further submitted that possession of petitioners has become adverse after passing of decree, therefore, it cannot be said that there is no pleading when possession become adverse. In these circumstances, order passed by appellate Court may be set-<br/>

aside.

4. Counsel appearing for respondents submitted that there has to be pleading in plaint that when possession of plaintiffs become adverse to that of defendants. Plaintiffs had pleaded that there is permissive possession over the land in question. In absence of pleading, there is no question to be enquired by leading evidence in trial Court and thus there is no prima-facie case and miscellaneous petition may be dismissed.

5. Head learned counsel for parties.

6. Counsel appearing for respondents placed reliance on pargarph-3 of pleadings in plaint. In said pleadings, it has been stated that defendants had given recognition to possession of plaintiff in land in question and permitted them to do agriculture and plaintiffs are continuously doing agriculture thereafter. Said pleadings shows that possession was permissive in nature. It has not been pleaded when possession of plaintiffs become adverse to that of defendants in their knowledge. No pleadings have been made that plaintiffs had acquired prescriptive right after being in peaceful possession for a period of 12 years within knowledge of defendants. In absence of said pleadings, there is no issue, whether plaintiffs had perfected their right by adverse and peaceful possession to knowledge of defendants over land in question. In absence of such an issue to be tried in civil suit, there is no prima-faice case and appellate Court has not committed any error of law in setting aside the order of injunction and probabilit