IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIRDESH nd ON THE 2 OF APRIL, 2024 SECOND APPEAL No. 507 of 2021 BETWEEN:-

THE STATE OF MADHYA PRADESH COLLECTOR THROUGH COLLECTOR, DISTRICT NEEMUCH (MADHYA PRADESH)

.....APPELLANT/STATE (MS. MEHUL SHUKLA, ADVOCATE FOR APPELLANT/STATE)

AND BHARATSINGH S/O MANSINGH RAJPUT, AGED ABOUT 47 YEARS, OCCUPATION: AGRICULTURIST GRAM

1.

CHOUTHKHEDA, TEHSIL AND DISTRICT NEEMUCH (MADHYA PRADESH)

MADANLAL S/O SURAJMAL GURJAR, AGED ABOUT 60

2. YEARS, OCCUPATION: PUJA KARYA GRAM CHOUTHKHEDA, TEHSIL AND DISTRICT NEEMUCH (MADHYA PRADESH)

BABULAL S/O MADANLAL GURJAR, AGED ABOUT 35 YEARS, 3. OCCUPATION: AGRICULTURE GRAM CHOUTHKHEDA, TEHSIL AND DISTRICT NEEMUCH (MADHYA PRADESH)

MAHENDRA S/O MADANLAL GURJAR, AGED ABOUT 30 YEARS, OCCUPATION: AGRICULTURE GRAM

4.

CHOUTHKHEDA, TEHSIL AND DISTRICT NEEMUCH (MADHYA PRADESH)

.....RESPONDENTS/PLAINTIFFS (MR. RISHIRAJ TRIVEDI, ADVOCATE FOR RESPONDENT NO.1)

(MR.HARISHCHANDRA TRIPATHI, ADVOCATE FOR RESPONDENTS)

This appeal coming on for orders this day, the court passed the following:-

O R D E R

Appellant/State has preferred this appeal under Section

100 of Code of Civil Procedure, 1908, against the judgment and decree dated 12.07.2019 passed by Third Additional District Judge, Neemuch (MP) in Regular Civil Appeal No.19-A/2016 arising out of the judgment and decree dated 28.02.2015 passed in Regular Civil Suit No.72-A/2012 passed by Civil Judge, Class-I, Neemuch (MP) by which the lower appellate court has reversed the judgment and decree passed by the trial Court and the suit filed by the respondent No.1 was dismissed.

(2) The brief facts of the case are that the plaintiff filed a suit for declaration of title and permanent injunction inter-alia contending that the land bearing survey No.4 area 0.314 rakba and survey no.135/2 area 0.721 rakba total 1.035 rakba having new survey no.165 and 170 respectively is the land belonging to the plaintiff and he is in possession of the said land and the defendants be restrained from making any interference with the possession of the plaintiff. It was further contended that the plaintiff's father was granted a Patta and their name finds place in the revenue record.

(3) That, a written statement was filed by the appellant/defendant and Patta granted to the plaintiff was canceled and therefore the plaintiff is merely an encroacher upon the said land.

(4) That, the trial court has framed the issues and after recording the evidence and after hearing both the parties has dismissed the suit filed by the plaintiff and against which the first appeal was preferred by the plaintiff/respondent which was allowed after hearing both the parties and the suit filed by the plaintiff was decreed.

(5) Being aggrieved from the impugned judgment and decree passed by the first appellate court, the appellant has filed this second appeal before this Court for redressal of his grievance and has argued that the judgments passed by the courts below is illegal and arbitrary and against the settled principles of law. He further submits that both the courts below have committed grave error in dismissing the suit and appeal filed by the appellant/defendant. Thus, on the basis of above grounds, substantial question of law arises for consideration in second appeal and prays that appeal be admitted for final hearing.

(6) I have heard counsel for the appellant/defendant and have perused the records of the case with due care.

(7) From the perusal of records, it appears that the respondent/plaintiff has filed the civil suit for declaration of title and permanent injunction against the appellant/defendant. The appellant has filed the written statement and has admitted that the plaintiff was granted Patta of the suit land which was later on canceled and the plaintiff has been merely declared as encroacher so the burden of prove lies upon the appellant/defendant to prove that the Patta was canceled by the revenue authorities and the cancellation order was passe