ORDER

1. The petitioner has filed this petition assailing the order dated 19/01/2022 contained in Annexure P-6 passed in MCA No. 15/2021 by Principal District Judge, Chhatarpur and also the order dated 16/03/2021 contained in Annexure P-5 passed in C.S. No. 11-A/2020 by 3rd Civil Judge Class II, District Chhatarpur.

2. Counsel for the petitioners/plaintiffs contends that a suit has been filed by the present petitioners/plaintiffs before the trial court for declaration and permanent injunction. In the plaint it is averred by the plaintiffs that the land situate on various khasra nos. which are detailed in paragraph 1 of the plaint were recorded in the name of Jagan Nath Kayastha. Later on after his death, nephew of Jagan Nath namely Raja Bhaiya Khare was recorded in the record as Bhoomi Swami and Raja Bhaiya Khare sold the property described in para 1 of the plaint to the father of the plaintiffs Dhaniram Ahirwar and Nathu Ram Soni and others. Later on petitioners on 18/08/2020 were tried to be ousted from the land in question by the employees of defendant no.2 on the ground that land was recorded as a government land therefore, the petitioners/plaintiffs filed a suit. Alongwith the plaint, an application under Order 39 Rules 1 and 2 of CPC was filed by the plaintiffs. The said application was rejected vide order dated 16/03/2021. Assailing the order dated 16/03/2021 the present petitioners/plaintiffs preferred an appeal before the lower appellate court. The lower appellate court also vide order dated 19/01/2022 has dismissed the appeal.

3. Counsel for the petitioners contends that the courts below have failed to appreciate that the plaintiffs are in possession of the property. The courts below have also further failed to appreciate that there is a sale deed contained in Annexure P-2 which was executed in favour of the father of the plaintiffs. It is also contended by the counsel that in the Rin Pustika the name of the plaintiffs were recorded and accordingly there was prima facie case in favour of the plaintiffs. It is contended by the counsel that other two ingredients i.e. balance of convenience as well as irretrievable injury were also in favour of the plaintiffs and thus, both the courts below fell in error while declining the application of the petitioners under Order 39 Rules 1 and 2 of CPC. Counsel for the petitioners has placed reliance on Satish Kumar Vs. Rajendra Jain, 2015 (2) MPLJ 181, Munni Devi Vs. Sambhu Singh, 2017 (2) MPLJ 366 and Seema Chouksey V. Dinesh Kumar, 2019 (4) MPLJ 393.

4. Per contra, counsel for the State Shri Swapnil Ganguly submits that in the present case the petitioners have not approached the court with clean hands inasmuch as the land in question is a government land and Naib Tahsildar, Chhatarpur vide an order dated 3/03/1986 held that the land in question is recorded as "Gair Haqdaar". The Naib Tahsildar also observed that the land in question is a government land and the government have made huge expenditure towards construction of pond on the land, accordingly, declared the land to be government land and Raja Bhaiya Khare was treated to be an encroacher. The said order though was initially challenged before the Sub Divisional Officer and Sub Divisional Officer set aside the order vide order dated 12/12/1998 but later on Sub Divisional Officer vide order dated 30/09/1997 recalled its earlier order and affirmed the order of Tahsildar dated 3/03/1986. Counsel also contends that one Yogendra Pratap Tiwari assailed the said order in respect of his share in the property and then after remand of the case, the Additional Commissioner vide his order dated 6/12/2013 issued direction for recording of the name of Yogendra Pratap Tiwari as regard khasra no. 400 area 1.932 hectares but the Additional Commissioner did not interfere with the remaining order of Tahsildar dated 3/03/1986. It is also contended by Shri Ganguly that Yogendra Pratap Tiwari has filed a suit before the