ORDER

The present second appeal has been preferred by the appellants under Section 100 of Code of Civil Procedure, 1908 (in short, 'CPC') being aggrieved by the impugned judgment and decree dated 17/08/2022 passed by District Judge, Susner, District Shajapur (M.P.) in RCA No.26/2017, whereby the learned First Appellate Court has affirmed the judgment and decree dated 12/07/2017 passed by Additional Civil Judge, Class-I, Susner, District Shajapur (M.P.) in Civil Suit No.02-A/2014 filed by the appellants / plaintiffs for declaration of title and permanent injunction, which has been declined by both the Courts below.

02. The brief facts of the case are that appellants / plaintiffs have filed a civil suit for declaration and consequential relief of permanent injunction against the respondent in respect of agricultural lands bearing survey No.181 and 168 admeasuring 0.20 and 0.11 hectares situated at Village Khoriya, Tehsil Soyakalan, District Agar Malwa by stating that plaintiff is in possession since ancestors and on account of trespass of the disputed land the Tehsildar issued a show cause notice, which has been duly replied by the plaintiff and further by stating that he has acquired Bhumiswami right on the basis of open, continuous and peaceful possession of the land in dispute. The suit land has not been kept reserved under Section 234 of Madhya Pradesh Land Revenue Code, 1959 (in short, 'MPLRC'), therefore, the Tehsildar has no jurisdiction to issue show cause notice under Section 248 of the MPLRC. The order passed by the Tehsildar being void ab initio and illegal, present suit has been filed.

03. Respondent / State denied all the averments made in the plaint by stating that survey Nos.181 and 168 are the government lands and are reserved for the use as 'Khalihan' for last more than 40 years. The disputed land was not allotted to anyone by the government and plaintiff has no right over the suit land. The capacity of plaintiff is just an encroacher, therefore, he does not deserve for any relief whatsoever kind.

04. The trial Court after recording the evidence of both the parties dismissed the suit with a finding that the dispute land is not being used as 'Khalihan' under Section 237 of the MPLRC. The appellants have preferred a first appeal, but the same has also been dismissed by affirming the judgment and decree passed by the trial Court. Being aggrieved by both the judgments and decrees, the appellants have preferred this second appeal before this Court.

05. Learned counsel for the appellants submits that the order passed by the Tehsildar was challenged by the plaintiff, which attained finality in Case No.Revision/4246-PBR/2016 in the case of Balchandra S/o Dayaram Vs. State of M. P. and Others, by which the revision filed by the appellants was allowed on 19/06/2018. After passing the judgment passed by the trial Court on 12/07/2017 holding that Tehsildar has no jurisdiction to issue notice under Section 248 of MPLRC. Thereafter, appellants have preferred an application under Order XLI Rule 27 of CPC, but same has been dismissed by the First Appellate Court on the ground of delay. The order passed by both the Courts below are bad in law and suffers from grave error. The findings of both the Courts below is perverse also, which is against the evidence available on record. Hence, he prays that the appeal be admitted on the substantial questions of law proposed by the appellants.

by supporting the impugned judgments and decrees passed by both the Courts below by submitting that both the Courts below have rightly appreciated the evidence available on record, therefore, no interference is warranted.

07. Both the parties heard at length and perused the entire record of both the Courts below with due care.

08. From perusal of the record of the trial Court, it appears that appellant / plaintiff has preferred a suit for declaration of title and permanent injunction, therefore, the burden lies upon the appellant / plaintiff to pro