JUDGEMENT

Heard on the question of admission.

2. By this common judgment S.A.No. 1376/2020 and 1007/2020 are being disposed of simultaneously.

3. These Second appeals under Section 100 of Civil Procedure Code (for brevity, CPC) have been filed by the appellants (hereinafter referred to as “plaintiffs”) against the respondents (hereinafter referred to as “defendants”) being aggrieved by the impugned judgment and decree dated 12/2/2020 passed by the 4th Additional District Judge, Waidhan, Distt. Singrauli in RCA No. 151/2013 and 89A/2013 affirming the Judgment and decree dated 13/3/2012 passed by Civil Judge, Class – I, Waidhan, Distt. Singrauli in Civil Suit No. (Old 25A/2006 and New 41A/2010).

4. It is submitted by the learned counsel for the appellants that they have been in continuous possession of the disputed land for more than 40 years prior to filing of the suit. Appellants by virtue of their possession over the aforesaid land attained the status of gair hakdar kastkar. Earlier original plaintiff Ramdayal was in possession of the land and thereafter, the names of the plaintiffs were being recorded showing in possession of the suit land. By virtue of provisions of Section 157 of Vindhya Pradesh Tenancy Act, 1953(for short “the Act”). The plaintiffs attained the right of gair hakdar kastkar in view of the khasra panchsala of the year 1955-

1961. It is also submitted on behalf the learned counsel of appellants that under the provisions of the said Act, original plaintiffs had attained the right of gair hakdar kastkar and the appellants have been in possession of the land since their ancestral’s time. The Record Keeper Virendra Dwivedi (PW-3) has also supported the version of the plaintiffs/appellants. As per Sections 123 & 158 of the M.P. Land Revenue Code 1959, the ancestor of the plaintiffs/appellants Ramdayal became the owner of the suit land. The learned courts below have not appreciated the fact that before 1955-56, the ancestor of plaintiffs was in possession of the suit land. The record of earlier 1955-56 is missing in the revenue record room, therefore, the same could not be produced. But in these circumstances, the learned courts below ought to have draw presumption under Section 114 of the Evidence Act in favour of the appellants.

5. It is also submitted by learned counsel of appellants that the conclusion of the learned courts below that the suit land is forest land is erroneous. There is no evidence on record to assume the suit land as forest land. Against earlier judgment and decree, the respondents did not prefer any appeal or revision. Keeping in view the long possession of the plaintiff and their ancestor, the relief of perpetual injunction ought to have been granted in favour of the appellants. The order of the Tahsildar, whereby patta has been granted in favour of Ramdayal and Devraj, was set-aside by the higher revenue authorities but that order of the higher revenue authorities is without jurisdiction. It is also submitted by the learned counsel for the appellants that while rejecting the application filed under provisions of Order 41 Rule 27 of CPC, the learned appellate court has committed a grave error because the document appended to that application were the khasra entries genuineness of which is beyond doubt.

5. Per contra, learned counsel for the State opposed the second appeal.

7. So far as the possession over the suit land of the plaintiffs are concerned, in this relation Ex. P/15 khasra of year 1971-72 to 1976 has been filed on behalf of the plaintiffs but that reflects that the suit land is shown in the name of Ramdayal and Devraj as possessor. But the nauyat is mentioned as jungle. There is no document on record which able to show the possession of the plaintiffs over the suit land since or before 1958. The receipts of land revenue (Ex.P/4 to P/14) were submitted on behalf of the plaintiffs but they are not related to the period before the MPLR Code comes into force. So fa