JUDGMENT

This appeal under section 100 of the Code of Civil Procedure has been filed by the appellants/plaintiffs against impugned judgment and decree dated 29.11.2021 passed by Additional District Judge, Amarwara, District Chhindwara in RCA No.100035/2015 [Kuber Singh and others Vs. Manish and others] whereby the appeal preferred by appellants has been dismissed and the judgment and decree dated 31.7.2015 passed by Civil Judge Class-II, Amarwara, District Chhindwara in Civil Suit No. RCS-A/300011/2012 dismissing the suit has been affirmed.

2. At the outset learned counsel for the appellants/plaintiffs submitted that plaintiffs have lost in both the courts. It is also submitted that both the courts have committed serious error of law as even if Courts found that plaintiffs were not the owners of the suit property then they should have granted permanent injunction in their favour looking to the fact that they were in possession for long time. He also submitted that appellants were having the status of 'maurasi' tenants. It is also submitted that defendant-Manish Chourasiya in paragraph 6 of his cross-examination has admitted that on the disputed land the present appellants/plaintiffs are in possession. He again referred to paragraph 13 of cross-examination of same witness to contend that this witness admitted that name of Jawala Prasad and later on his legal heirs were recorded in the revenue records. It is further submitted that in Exhibit-P/12 which is an order of Tahsildar dated 05.21987 it has been held that Jawala Prasad has status of agriculturist. By Exhibit-P/13 the application of defendant was rejected and possession of the plaintiffs was upheld. He further submitted that atleast decree of not to dispossess the appellants/plaintiffs without due process of law should have been granted. In support of his case learned counsel has placed reliance on the decision in the case of Iqbal Basith and others Vs. N.Subbalakshmi and others, 2021 (2) SCC 718.

3. After hearing perused the record. It is seen from the cross- examination of Manish (DW.1) that Kuber Singh s/o Jwala Prasad (plaintiff no.1) was in possession of the suit land as mentioned in paragraph 1 of the judgment of the trial Court.

4. Learned counsel for the respondents who are present today at this juncture submitted they accept that on the date of filing of the suit as well as earlier the plaintiffs were in possession of the suit property.

5. Therefore, appeal is admitted on the following substantial question of law:- "Whether the plaintiffs were not entitled for decree for permanent injunction or not and can they be dispossessed without due process of law?"

6. Since the appeal has been admitted and record is already received, therefore, learned counsel for the parties submit that they are ready to argue this case finally so that this appeal may be finally disposed of.

7. With the consent of learned counsel for the parties this appeal is decided as below.

8. On perusal of the record it is seen that since Manish s/o Dube Lal (DW.1) has admitted in para 6 of his cross-examination to the effect that it is true that over the disputed property presently plaintiffs are in possession. about possession of Jwala Prasad and thereafter his legal heirs over the suit property. This witness in paragraph 14 has also admitted that Jwala Prasad being Patwari he himself was not carrying out agricultural activities but he was getting the same done through others.

9. Therefore, it is clear from the perusal of the record that on the date of filing of the suit the plaintiffs were in possession of the suit property. Hence, judgment and decree of both the courts are set aside and it is directed that appellants/plaintiffs shall not be dispossessed from the suit property without due process of law. Accordingly, appeal is disposed of.

10. Let decree be drawn up accordingly.

11. Let a copy of this judgment alongwith records of the trial Court as well as first appellate court be sent back to the concerne