IMPORTANT POINT
Plaintiff has got to prove his case to get relief sought for.

Judgment

Prafulla C. Pant, J.

This appeal is directed against judgment and order dated 30.5.2011, passed by the High Court of Madhya Pradesh, Gwalior Bench, in Second Appeal No. 256 of 2005 whereby said court allowed the second appeal and set aside the decree passed by VIII Additional District Judge, Gwalior, in Civil Appeal No. 5A of 2005, and the one dated 30.11.2004 passed by the trial court (V Civil Judge Class II, Gwalior, in Civil Suit No. 189 A of 2004).

2. Heard learned counsel for the parties and perused the papers on record.

3. Briefly stated, case of the appellant (defendant) is that land in question bearing survey Nos. 376 to 400 and 401 to 411, measuring 45 bigha 10 biswa situated at village Dinapur, Tehsil and District Gwalior, was acquired by the State Government for setting up industrial area, in the year 1946. However, the industrial area could not be set up and a part of the land appears to have been given on lease to plaintiff-respondent Nomi Singh on 11.5.1951 for a period of one year. In the year 1978 Tehsildar (Nazul), Gwalior, vide order dated 21.11.1978, passed in case No. 560A/68-74-75, declared the respondents as encroachers over the land in question.

4. On the other hand, the case of the respondents (plaintiffs) is that the above mentioned land belonged to one Zamindar Srilal, who granted oral patta to Surjan Singh (father of respondent No. 1 Nomi Singh), and he was recorded as ‘Maurusi Kashtkar’ (hereditary tenant) in the revenue record. As such, on death of Surjan Singh, name of plaintiff Nomi Singh was entered in the revenue record as ‘pakka krishak’. But, later it was found that the names of the plaintiffs were recorded in the column No. 12 of Khasra, i.e. in the column relating to entry of the encroachers. Hence, they filed suit in 1991 numbered as Suit No. 144A of 1991.

5. The trial court (in the first round before remand) dismissed the suit vide judgment dated 17.7.1998. However, said decree, passed by X Civil Judge Class-II, Gwalior, in suit No. 144A of 1991, was set aside by the first appellate court, i.e., X Additional District Judge, Fast Trek Court, Gwalior, vide its judgment and decree dated 25.2.2002 who remanded the matter back to the trial court, after allowing application for amendment in the plaint moved by the plaintiffs at the first appellate stage.

6. After the matter was remanded by the first appellate court, as above, the plaint was re-numbered as suit No. 189A of 2004. Again, after trial, the suit was dismissed by the trial court (this time by V Civil Judge Class-II, Gwalior) vide its judgment and decree dated 30.11.2004. Once again the plaintiffs approached to the first appellate court and filed Civil Appeal No. 5A of 2005 challenging the decree dated 30.11.2004. The first appellate court (this time VIII Additional District Judge, Ashok Nagar, Gwalior), after hearing the parties, dismissed the appeal.

7. Aggrieved by the orders of the trial court and that of the first appellate court, Second Appeal No. 256 of 2005 was instituted by the plaintiffs (present respondents) before the High Court. After hearing the parties the High Court held that the courts below should have taken adverse inference against the defendant as it has failed to produce original khasra entries from Samvat 2005 onwards. It further held that the courts below should have presumed that the plaintiffs have automatically become ‘Bhumiswamis’ after enforcement of Madhya Pradesh Land Revenue Code, 1959, and as such allowed the second appeal, and set aside the judgment and decree passed by the first appellate court, and that of the trial court.

8. On behalf of the appellant (defendant), i.e., State of Madhya Pradesh, it is argued before us that the High Court has committed grave error of law in setting aside the concurrent decree passed by the trial court and the first appellate court. It is contended that the plaintiffs failed to establish the requisites of adverse possession pleaded in the amended plaint and they cannot