Atul Sreedharan, J.

1. The present appeal has been filed against judgment and decree dated 13.10.2022 passed by the Court of the Ld. 3rd District Judge, Rewa, in Civil Suit No. RCS A-100/2019, whereby the suit filed by the Appellant/Plaintiff has been dismissed. The appeal is of the year 2022, however, as there was an interim order in operation, this appeal was finally heard with the consent of both parties.

2. It is the case of the Appellant that his father Mr. Mamanchandra Agrawal@Mamchand Agarwal had acquired of plots No. 3512, admeasuring 1.96 acre and plot of No. 3513, admeasuring 0.92 acre in the year 1939 from the then Ruler of the Rewa State Mr. Gulab Singh Judev by way of a paat (PAAT) (hereafter referred to as the "Royal Grant") which the Appellant insists was a document vesting title in the father of the Appellant. It is further the case of the Appellant that in 1939 itself, the father of the Appellant established a petrol pump by allotting part of the said land on lease to the 'Burmah Shell Company' by depositing title deed (Royal Grant) of the land on a monthly rent of Rs. 6/-.

3. It is further averred that in the year 1973-74, the Burmah Shell Company got merged in the Bharat Petroleum Corporation Ltd., and since then Bharat Petroleum Corporation Ltd., became the lessee of the Plaintiff/Appellant on a monthly rent of Rs. 200/- which continues till date. Thus, it is a case of the Appellant that he is the owner of the suit property being the successor in interest of Mr. Mamanchandra Agarwal and in possession of the suit properties in continuity till date.

4. It is further stated by the Appellant that he could not get his name mutated with regard to the suit property which remains in the name of the State of Madhya Pradesh but the same notwithstanding, the Appellant operates the petrol pump without any restrain from any quarter. The Appellant, however, states that he had made several written and oral representation to the State Authorities to decide the issue of ownership of the disputed land but the same was never decided. In paragraph-4 of the appeal memo, the Appellant states that the title document of the Plaintiff which is the Royal Grant has either been lost by Burmah Shell Company or misplaced during merger of Burmah Shell Company with the Bharat Petroleum Corporation Ltd., and therefore, despite due diligence, the Royal Grant is not in the possession of the Plaintiff. It is also stated in appeal memo that the name of the Plaintiff/Appellant with regard to the suit property finds a mention in the entries in government documents of the year 1952-55.

5. It is alleged by the Plaintiff that the Defendants/Respondents and their officials intimidated the Appellant of dispossession and eviction from the suit property as the same in the name of Defendant/Respondent State of Madhya Pradesh. Therefore, the Appellant filed the civil suit against the Respondents from which this appeal arises, seeking declaration of ownership with regard to the suit property. It was the case of the Plaintiff that it was in unrestrained possession for the past 80 years. Also sought was the relief of permanent injunction restraining the Defendants/Respondents from disturbing the Appellant's ownership and possession over the suit property.

6. The Respondents filed the written statement without admitting much on the material contentions of the Appellant and instead averred that the disputed land was given to the Burmah Shell Company on temporary by the lease by Respondents from 01.04.1960 to 31.03.1969 and after the period of lease expired, the same was never renewed and therefore, the Appellant became an encroacher. It is also the case of the Respondents that the Appellant had no title over the suit property.

7. After hearing both the sides, learned trial Court dismissed the suit on the ground that the Appellant has not been able to prove his title to the suit property and nor was it able to establish that it was in possession, adverse to the rights of the Respondents and that the Appellant was actually in permissive possession of the suit land and therefore, had no right to remain of the said land once the pleasure of the State Government is withdrawn.

8. Learned senior counsel appearing on behalf of the Appellant has submitted that the State has denied the existence of the Royal Grant in favour of the Appellant. He has drawn the attention of this court to paragraph no. 3 of the written statement filed by the State which reflects an admission on the part of the State that the suit property was given on lease by the State in favour of Burmah Shell company for the period commencing from 1.4.1966 till 31.3.1969. It is submitted that the Appellant (who shall henceforth be referred to as "the Plaintiff") had objected to the lease entered between the company and the State, as no consent was given by the Plaintiff to Burmah Shell to enter into such a lease agreement as, the Plaintiff had ownership over the property in question on the basis of the Royal Grant. However, no particulars of such an objection lodged with the Respondent State have been filed and proved by the Plaintiff. On behalf of the Defendant, it is averred that the Plaintiff became a trespasser on 1.4.1969 as no steps were taken by the Plaintiff to extend the lease of the suit property. It is also submitted on behalf of the Plaintiff that the State had taken a stand that the Plaintiff did not take any steps to mutate the property in its name and that in the year 2005-2006 the premium and the lease rent for the land not having been paid by the Plaintiff, the Plaintiff became a trespasser.

9. Learned counsel for the Plaintiff has referred to Exs.P1 to P5, which have been admitted by the Defendant-State through their sole witness D.W.1. The attention of this court has also been drawn to Ex.P1, which is a report of the Nazul Inspection Officer dated 21.7.2006 in relation to the status of the property as in 1970-71. Specifically, attention of this court has been drawn to serial number 5 of the said report which discloses that the inspecting officer had himself inspected the suit property on site and found it to measure 3041.5 sq. ft., where, by hand it has been entered that the occupier has been in possession of the said land before 1950, which does not come within the category of encroachment. However, it is also important to mention here that as regards the place where the description of the property is given as "based on title", there is a cross-mark to reflect that the occupation was not on the basis of any title. It is also relevant to mention here that in the space given as "based on encroachment", the authority has marked and crossed there also to indicate that the occupation of the suit property was not by way of encroachment either. However, in the same document (Ex/P1), it is also endorsed by the inspecting authority that the occupier, viz., the Plaintiff, had handed over a photocopy of the temporary lease entered into between Burmah Shell company and the Defendant between 1966 and 1969. It is relevant to mention here that this endorsement by the Nazul Officer in Ex.P1 reflects that the said document (lease deed) was available with the Plaintiff and that it is why the Plaintiff could hand over a copy to the Nazul authority at the time when Ex.P1 was prepared. However, the said lease-deed has never been exhibited by the Plaintiff before the trial court the significance of which shall be adverted to by this court later in this judgment.

10. Attention of this Court has been drawn to Ex. P/2 by the learned counsel for the Plaintiff. This is a document exhibited by the Plaintiff before the trial Court. It is a report of the Revenue Inspector, Nazul, Rewa pertaining to the status of the suit property in the year 1970-71 but prepared on 13.06.2006. The name of the occupier is given as Satya Narayan, Ram Niwas S/o Mamanchand Agrawal. It is pertinent to mention here that the Plaintiff's stand before the learned trial Court and before this Court is that the said land came into the ownership of the father of the proprietor of the Plaintiffs on the basis of Royal Grant given in 1939. In Sr. No. 6 of the said report, entry pertaining to the nature of the ownership is given as  which in English means "Proof given by the occupier in relation to the manner in which the land was acquired." In hand, it has been entered by the revenue authority that the rights over the property was acquired by way of temporary lease for the period 1.4.1966 to 31.06.1969. For this, a photocopy of the lease deed was provided to the Revenue Inspector by none other than the occupier, which is the Plaintiff. In the inspection tip, the Revenue Inspector has noted that as per the orders received by him, he has conducted the inspection on site and found that the property measures 282.66 square metres on which the occupier Ram Nivas Agrawal S/o Mamanchand Agrawal is operating a petrol pump. It further notes that there was a detailed survey case prepared in the name of Satya Narayan Ram Nivas Agrawal and in the presence of the Panchas and other renowned persons the Panchnama was prepared. It further records that as per the guidelines of 2005-06, the revenue payable for the said year was Rs. 20,52,112/-, which had to be paid along with an interest @ 7.5 % which additionally came to Rs. 1,53,908/-. It further recorded that in order to demonstrate old possession, the Plaintiff gave photocopy of a temporary lease deed for the period 1.4.1966 to 31.06.1969 and documents of the Municipal Corporation to show possession between 1950 to 1995. It also recorded that during the inspection the authority was informed that the Plaintiff was in occupation of the suit property before 1924-25 and that in the past, the Burma Shell Company was operating its petrol outlet and thereafter, the Plaintiff was operating the outlet from the suit property. It further records that the occupier gave an application that the suit property be considered as land which is in "Old possession" with the Plaintiff and requested the State to conduct the colligation of the suit land in accordance with law without imposing a premium which, the revenue officer recorded as "may be considered".

11. Ex.P/3 is the map showing the location of the suit property where the petrol pump is being operated by the Plaintiff which is in the triangulation between Venkat Road and N.H.7. Annexure P/3 is the Panchnama prepared on 13.06.2006 of the suit property where statements of the witnesses of the locality were taken and according to whom the petrol pump has been operational on the suit property since 1924 and earlier it was in the name of Manikchand Kanhaiyalal Agrawal and, thereafter, from 1967 the petrol pump has been operational in the name of the Plaintiff's firm. Ex.P/7 is a receipt issued by the Bharat Petroleum Corporation Limited which reflects the receipt of Rs. 1,000/- from the Plaintiff on 1.1.1978 towards security for running the pump. Ex.P/8 is a letter dated 26.08.1962 issued to the Plaintiff firm acknowledging receipt of Rs. 1,000/- towards security deposit.

12. Learned counsel for the Appellant/Plaintiff has referred to the evidence given by the witnesses. PW-1 in paragraph 2 of his examination-in-chief has stated that in the year 1939 the erstwhile Ruler of Rewa Gulab Singh Judev had given the land to the father of the Plaintiff whose name was Mamanchand Agrawal @ Manak Chand Agrawal. The preponderant thrust of PW1's evidence which is also reflected in the cross-examination is that the Plaintiff is the owner of the suit property the same having been acquired by him on the basis of a Royal Grant given by the erstwhile Ruler of Rewa in the year 1939 to his father. It is also mentioned that the Plaintiff has been in possession of the said property since long, but the direction of his testimony has been more towards the success of the plaint on the basis of title rather than on possession.

13. PW-2 is Manik Anirudh Pandey, a resident of Rewa, who has given evidence to the said fact that the said Petrol Pump has been functional on the suit property for the past 40 to 42 years and that ever since he became aware of his surrounding, he has seen the said Petrol Pump operational at Victory Pillar junction continuously. He further states that the said outlet is run by Bharat Petroleum Corporation and before that, as per information received from his ancestors, Burmah Shell Company was operating the Pump. This witness's information relating to the operation of the Petrol Pump by Burmah Shell Company, is hearsay. Similar is the statement of Manik Govind Shukla, who has been examined as PW-3, another resident of Rewa who has stated likewise.

14. Learned counsel for the Appellant has thereafter drawn the attention of statement of the sole defence witness R.P. Tripathi, the Tahsildar. In his examination-in-chief, he has stated in paragraph 6 that the name of the Plaintiff was never entered as a Bhumiswami in the revenue records. In paragraph 7, this witness states that on account of rising population in the city, there was a congestion at the triangulation, where the suit property is situated from where the Petrol Pump is being operated on account of that, the State had issued two notices U/s. 248 of the M.P. Land Revenue Code for the removal of the encroachment from those areas in order to manage the congestion. He further says in the same paragraph that the suit has been filed by the Plaintiff herein on baseless grounds. Thereafter, the Plaintiff has drawn the attention of this Court to paragraph 10 of the testimony of DW-1 in cross-examination where he had admitted that the written statement on behalf of the Defendant was prepared and filed by him supported by his affidavit, as was the evidence in chief. Attention has also been drawn by the Plaintiff to paragraph 11 where, the witness has admitted that he never gave notice U/s. 248 of the M.P. Land Revenue Code to the Plaintiff and thereafter volunteered a statement that his predecessor may have given such a notice. The witness also admits categorically that no notice U/s. 248 of the M.P. Land Revenue Code has ever been issued by him to the Plaintiff. Thus, this witness is speculative on the question of issuance of notice to the Plaintiff u/s. 248 of the M.P. Land Revenue Code, 1959.

15. On the legal aspects of the case, learned counsel for the Appellant/Plaintiff has submitted that even assuming the worst case scenario, where if this Court is likely to hold that the Appellant was unable to prove his title on account of non-production of the Royal Grant, the very fact that he was undisputedly in possession of the said property for a prolonged period of time, would by itself create the right of ownership in his favour by operation of the M.P. Land Revenue Code, 1959 (hereinafter referred to as the "Code of 1959") and the Rewa Land Revenue and Tenancy Code, 1935 (hereinafter referred to as the Code of 1935). Learned counsel for the Plaintiff has placed before this Court the relevant extracts of the Code of 1935 proposed to be referred by him during his submissions. The Code of 1935 received the assent of the erstwhile Ruler of Rewa on 18.1.1935 and the same was drafted to consolidate and declare the law relating to the land revenue, land tenure and other matters connected with the land in the Rewa State. Section 57 of the Code of 1935 dealt with what is called "Gairhaqdar Tenants".

16. Sub-section (1) of Section 51 describes the "gairhaqdar tenants" to be any tenant other than the "Pachpan Paitalis tenant" or "Pattedar tenant". Subsection (2) provides that the interest of the gairhaqdar tenant is for the term of his contract, if any, heritable and will devolve in accordance with the provision of Section 48. Sub-section (3) laid down that the interest of gairhaqdar tenant is not transferable in any shape and form and sub-section (4) provided that the gairhaqdar tenant who has occupied the land other than grove land, tank or land acquired or held for a public purpose or work of public utility with the consent, express or implied of the Tahsildar or the Pawaidar or Sub-Pawaidar, shall be entitled to be recorded as a Pattedar tenant and to obtain a patta, if he agrees to pay rent determined in accordance with the provisions of Section 88.

17. Learned counsel for the Appellant has read the provision in conjunction with Section 158 of the Code of 1959, which defines a "Bhumiswami" with specific reference to Section 158(1)(d)(ii). According to the learned counsel for the Appellant/Plaintiff, sub-clause (ii) of Clause (d) of subsection (1) to Section 158 of the Code of 1959 provides that any person, in respect of the land other than that which is excepted in the bracketed portion, which such person holds in the Vindhya Pradesh region as a "gairhaqdar tenant" in respect of which he is entitled to a Patta in accordance with the provisions of sub-section (4) of Section 57 of the Rewa State Land Revenue & Tenancy Code, 1935, attains the rights of a Bhumiswami. Thus, it is argued on behalf of the Plaintiff that even if the Plaintiff has not been able to prove his title by not producing Royal Grant, he is entitled to a declaration in view of the operation of s. 158(1)(d)(ii) of the code of 1959, when read in conjunction with section 57(4) of the Code of 1935. It is the case of the Plaintiff that it has been in uninterrupted possession of the land even before 1939 as therefore would come within the definition of Section 57(4) of the Code of 1935, making it entitled to be recorded as a gairhaqdar tenant and therefore, by virtue of sub-clause (ii) of Clause (d) of sub-section (1) of Section 158 of the Code of 1959, he would be entitled for the relief of declaration of title of the suit property.

18. In support of his argument, the Ld. Counsel for the Plaintiff has placed before this Court the judgment of this Court 1991 Revenue Nirnay (RN) 215 - Raghuwansh Kumar Vs. State of M.P. and Anr.,. The second judgment relied upon by the Plaintiff is 1993 Revenue Nirnay (RN) 194 - Kesharbai and Ors., Vs. Ramkhilawan and Anr.,.

19. The Ld. Counsel for the Defendant State on the other hand has vehemently opposed the Appeal filed by the Appellant/Plaintiff. He submitted that the Plaintiff has been unable to prove his pleadings. He further states that the entire case of the Plaintiff before the Ld. Trial Court was on the basis of title by virtue of the Royal Grant given by the erstwhile Princely State of Rewa. All the pleadings in the plaint, as per the Ld. Counsel for the Defendant has been to prop a case for declaration as owner of the suit property based on the title. He has drawn attention of the Court to paragraph No. 2 and 3 of the Plaint where the Plaintiff has categorically averred that the suit properties are owned by it by virtue of the Royal Grant which resulted in the investiture of title on the father of the proprietor of the Plaintiff, Mr. Mamanchandra Agarwal @ Manikchand Agarwal, in the year 1939. It is further averred in the plaint that Mamanchandra Agarwal decided to operate a petrol station on the suit property in association with the Burmah Shell Company (hereinafter referred to as the "Company") and so deposited the Royal Grant and gave the suit property on lease to the Company @ Rs. 6. In the year 1973-74, the Company closed its operations in India and its interest was subsumed in the Bharat Petroleum Corporation Limited (hereinafter referred to as "BPCL") and BPCL took the suit property into its fold at an annual rent of Rs. 200/- and thus, the Plaintiff averred that it was in continued possession of the suit properties since the year 1939.

20. Ld. Counsel for the State submits that the Royal Grant was never produced and exhibited before the Ld. Trial Court and neither has the Plaintiff proved the Royal Grant by producing its entry in of the documents/registers maintained by the erstwhile princely state of Rewa. He further submits that the Plaintiff has not placed on record any document that would go to show that there was a lease deed executed between the Plaintiff and the Company or BPCL which could have revealed the capacity in which the Plaintiff was entering into a deal with the Company and later with BPCL. He has also drawn attention of this Court to the averment made by the Plaintiff in para five where there is an admission of loss of the Royal Grant.

21. The Ld. Counsel for the Defendant says that the allegations in paragraph 6 of the Plaint that the Plaintiff was constantly threatened with eviction by the officers of the Defendant is merely a bald statement without any document to prove it. He further says that notice for eviction is given u/s. 248 of the Code of 1959 and no such notice was ever issued to the Plaintiff and that this fact was admitted to by the Ld. Counsel for the Plaintiff with reference to the testimony of DW1. Having taken the Court through all the averments made in the Plaint, the Ld. Counsel for the Defendants states that there is no averment in the pleadings about title on the basis of adverse possession or title on the basis of operation of law.

22. It is also the case of the Defendants that the Plaintiff must prove his case on the strength of its own pleadings and evidence and cannot expect relief on the basis of the weakness of the Defendant's case. It is also argued that possession by itself does not grant title and that the lease was granted to the Company from 1966 to 1969 and not to the Plaintiff. Referring to para seven of the plaint, the Ld. Counsel for the Defendant has stated that but for stating that the suit property has been in the possession of the Plaintiff since yore, none of the other facets of adverse possession have been pleaded and proved by the Plaintiff. He has drawn attention of this Court to the testimony of PW1 wherein there is no statement made by the witness having approached the revenue authorities to mutate the name of the Plaintiff as the Bhumiswami of the suit properties. Likewise, reference has been made to para 2 and 3 of the testimony of PW1 where he has stated that he is the owner of the suit property though not recorded as a Bhumiswami in the revenue records. He further submits that there is only a half-hearted reference to adverse possession in paragraph 7 of PW1's testimony.

23. The Ld. Counsel for the Defendants has thereafter referred to the statement of the sole Defendant Witness DW1 who is the Tahsildar who says in para 17 of his testimony that in the s. 80 CPC notice given by the Plaintiff to the Defendants, the Plaintiff has not based his claim on the suit property on the basis of possession, but on the Royal Grant and therefore, could not plead and entirely different case in the Plaint or before this Court.

24. As regards the reliance of the Plaintiff on s. 158(1)(d)(ii) of the Code of 1959, the Ld. Counsel for the Defendants states that it was never the case of the Plaintiff before the Trial Court that he was a "Gair Haqdar" and therefore, the Plaintiff could not rely on the said provision before this Court in appeal.

25. The Ld. Counsel for the Plaintiff in his rejoinder submissions has stated that the Plaintiff has taken the pleading of adverse possession and that is why the Ld. Trial Court has referred to the same in paragraph 53 and 54 of the impugned Judgment and Decree. Besides, he says that the factum of possession has been accepted by the Defendants as is reflected in the testimony of DW1. It is further submitted on behalf of the Plaintiff that the doctrine of ex debito justitiae empowers this Court to do complete and wholesome justice in the light of the Plaintiff having acquired title by prescription over the suit properties.

26. As regards the acquisition of title based on S. 158(1)(d)(ii) of the Code of 1959, it is stated by the Ld. Counsel for the Plaintiff that even in the absence of specific pleadings, the same can be considered by this Court as the same is a question of law and not fact. Additionally, reference has been made to paragraph 8 of the plaint where it is averred that the Plaintiff has been in continuous and uninterrupted possession of the suit properties since the year 1939. Thus, the flagship argument of the Plaintiff is the right to title based on acquisitive prescription or adverse possession and by operation of law (s. 158(1)(d)(ii) of the Code of 1959).

27. Heard the Ld. Counsels for the parties and perused the record of the Ld. Trial Court. From the submissions of the Ld. Counsels for the parties, the following issues arise for consideration by this Court.

(1) Whether the Plaintiff has been able to prove his title based on the purported Royal Grant of 1939

(2) Whether the Plaintiff is a "Gair Haqdar" as per the relevant provisions of the Code of 1935 If yes,

(3) Whether the Plaintiff is Bhumiswami of the suit property by virtue of s. 158(1)(d)(ii) of the Code of 1959 if no,

(4) Whether the Plaintiff has perfected his title by adverse possession

(5) Whether adverse possession was pleaded and proved by the Plaintiff

Question No. 1 considered

28. The main thrust of the Plaintiff's case in the pleadings is that his father Mamanchandra Agarwal@Manikchand Agarwal acquired the suit properties based on the Royal Grant bestowed upon him by the erstwhile Princely State of Rewa. Initially, the father of the Plaintiff (Ramniwas Agarwal, proprietor of the firm) had entered into a lease with the Burmah Shell Company for operating a fuel pump on the suit properties and subsequently, with BPCL. The Plaintiff has not produced the Royal Grant before the Trial Court and has admitted in the plaint that the same is not in its possession, having been lost when it was given to the Company at the time of executing the lease deed for operating the fuel pump from the suit premises. The Plaintiff did not even place any evidence relating to the Royal Grant which may have been in the records of the erstwhile princely state of Rewa. Thus, the Plaintiff has not been able to prove his title on the basis of the purported Royal Grant and this question is answered accordingly in the negative.

Question No. 2, 3, 4 and 5 considered together

29. The flagship argument of the Plaintiff is that he is owner of land by operation of law. According to the Plaintiff, it was a Ghairhaqdar tenant u/s. 57 of the Code of 1935 which reads as hereunder.

57 (1) - All tenants, other than Pachpan-Paintalis tenants and Pattedar tenants, are ghairhaqdar tenants.

(2) The interest of a ghairhaqdar tenant is, for the term of his contract, if any, heritable and will devolve in accordance with the provisions of section 48.

(3) The interest of a ghairhaqdar tenant is not transferable in any shape or form.

(4) A ghairhaqdar tenant who has occupied land other than grove land, tank, or land acquired or held for a public purpose or a work of public utility, with the consent, express or implied, of the Tahsildar or the pawaidar or sub-pawaidar, as the case may be, shall be entitled to be recorded as a pattedar tenant and to obtain a patta if he agrees to pay rent determined in accordance with the provisions of section 83.

30. S. 57(1) defines a Ghairhaqdar tenant as someone who is not a "Pachpan-Paintalis" tenant or a "Pattedar" tenant. S. 40 of the Code of 1935 provides for only three kinds of tenants namely Pachpan-Paintalis tenants, Pattedar tenants and Ghairhaqdar tenants. A Pachpan Paintalis tenant is defined u/s. 41 of the code of 1935 as tenant recognized as a pachpan paintalis tenant in the record of rights of the last settlement before the commencement of the Code of 1935 and also includes every transferee of such a tenant and such categories of tenants who fall within s. 41(1)(a) to (g). From a reading of the said provision, it appears that they are a class of tenants who get a concession of 45% of the rent payable by them for revenue generating activities as provided under clauses (a) to (g) of s. 41(1). S. 42(1) makes the interest of a pachpan-paintalis tenant heritable and u/s. 42(2) the said right is also transferrable.

31. S. 43(1)(a) of the Code of 1935 defines a Pattedar to be a tenant other than a pachpan-paintalis tenant who, on the date of commencement of the Code of 1935 was in possession of a patta of land other than a sir, grove-land, or tank, or land acquired or held for a public purpose or work of public utility. The interest is heritable and devolves on the descendants of the pattedar in the order of succession as given u/s. 48of the Code of 1935.

32. The Plaintiff claims his title u/s. 57 of the Code of 1935. According to him, even if he was unable to prove title to the suit properties on the basis of the purported Royal Grant given to the father of the proprietor of the Plaintiff in 1939, he still is eligible for a declaration of title u/s. 57 of the Code of 1935 as Mr. Mamanchandra Agarwal, was a Ghairhaqdar having occupied the suit premises on a date even prior to 1939. Ld. Counsel for the Plaintiff has referred to s. 57(4) of the Code of 1939 which creates an entitlement in a Ghairhaqdar to be recorded as a pattedar tenant. This entitlement, however, is subject to the Ghairhaqdar agreeing to pay rent determined in accordance with the provisions of section 83 of the Code of 1935. Ld. Counsel for the Plaintiff has connected this right u/s. 57(4) of the Code of 1935 with the provisions of s. 158(1)(d)(ii) of the Code of 1959. The same reads as hereunder.

"every person in respect of land (other than land which is a grover or tank or which has been acquired or which is required for Government or public purposes) held by him in the Vindhya Pradesh region as a gair haqdar tenant and in respect of which he is entitled to a patta in accordance with the provisions of subsection (4) of Section 57 of the Rewa State Land Revenue and Tenancy Code, 1935".

33. A plain reading of the provision extracted hereinabove requires that the person seeking its benefit requires to establish that (a) he holds a land which is not within the excepted category in the bracketed part, (b) that the land in question is in the Vindhya Pradesh region (not disputed in the facts of the present case by the Defendant) and (c) that the land is held by the person in his capacity as a Gair Haqdar in accordance with the provisions of sub-section 3 of Section 57 of the Code of 1935 (not admitted to by the Defendant in the facts of the present case as it was never pleaded by the Plaintiff before the Ld. Trial Court) which creates a class of Bhumiswami, of persons, who held lands in the Vindhya Pradesh region as a "Gairhaqdar" tenant and in respect of which he is entitled to a patta in accordance with the provisions of sub-section (4) of section 57 of the Rewa State Land Revenue and Tenancy Code, 1935.

34. However, if such a Ghairhaqdar tenant under the Code of 1935, comes within the excepted category in the bracketed portion of 158(1)(d)(ii) of the Code of 1959, which reads "other than land which is grover or tank or which has been acquired or which is required for Government or public purpose", then, even if he is a Ghairhaqdar under the Code of 1935, he would not be a Bhumiswami for the purposes of s. 158(1)(d)(ii) of the Code of 1959. The Ld. Counsel for the Defendants has in the course of the arguments before this Court stated that the suit properties are situated on the triangulation of a major road junction in Rewa city and there is traffic congestion and to ease which, the suit properties are required for widening the road which is a public purpose. He further stated that the requirement of the suit properties by the Defendants for public purpose was never stated in the written statement as there was no averment in the plaint that the Plaintiff was a Ghairhaqdar Tenant u/s. 57 of the Code of 1935 and therefore acquired Bhumiswami rights u/s. 158(1)(d)(ii).

35. Examining the legal proposition put forth on behalf of the Plaintiff, this Court is at variance with the opinion of the Ld. Counsel for the Plaintiff. The factual aspect which arises from the submission put forth on behalf of the Plaintiff is that the original "Ghairhaqdar" is Mr. Mamanchandra Agarwal, the father of the Plaintiff's proprietor. As per s. 57(2) of the Code of 1935, the interest of a Ghairhaqdar tenant is heritable and will devolve upon his successors in accordance with the provisions of s. 48 of the Code of 1935. S. 48 provides for the devolution of interest of a "Pattedar" not a Ghairhaqdar, in the order of succession given therein.

36. Therefore, the question that arises here is how does the Plaintiff's proprietor, Mr. Satya Narayan Ramniwas, step into the shoes of his father, the original Ghairhaqdar (as stated by the Plaintiff) To answer this conundrum, reference must made to s. 57(4) of the Code of 1935 which creates an entitlement in favour of a Ghairhaqdar to be recorded as a "Pattedar" only if the Ghairhaqdar agrees to pay the rent determined in accordance with the provisions of section 83 of the Code of 1935. S. 83 provides for the determination of rent payable by a person "admitted to the occupation of a land as a pattedar tenant......".

37. Thus, from a conjoint reading of ss. 57(2) and (4), 48 and 83 of the Code of 1935 and s. 158(1)(d)(ii) of the Code of 1959, the following propositions emerge. (A) that the interest of a Ghairhaqdar would normally come to an end with his death. However, (B) if during the lifetime of the original Ghairhaqdar, he becomes a "Pattedar" as provided u/s. 57(4) of the Code of 1935, by paying the rent determined in accordance with s. 83 of the Code of 1935, then his successors in interest would step into his shoes upon his death as provided u/s. 48 of the Code of 1935 as Pattedars and not as Ghairhaqdars and (C) even if the Ghairhaqdar acquired pattedhari tenant rights under s. 57(4) of the Code of 1935, he cannot acquire Bhumiswami rights under s. 158(1)(d)(ii) of the Code of 1959, if the land is required for a public purpose as provided in the bracketed portion of the said section.

38. In the backdrop of the interpretation given by this Court in the previous paragraph, if the factual aspect of this case is examined, the admitted fact is that the original Ghairhaqdar was the father of the Plaintiff's proprietor. However, there is no material on record to reveal, that Mr. Mamanchandra Agarwal, during his lifetime had ever exercised his entitlement of being recorded as a pattedar tenant in accordance with s. 57(4) of the Code of 1935 by agreeing to pay the rent, determined in accordance with s. 83. As, Mr. Mamanchandra Agarwal never became a pattedar tenant and remained a Ghairhaqdar therefore, after his death, the interest in the suit property did not devolve upon the Plaintiff's u/s. 57(2) as under the said section, the property of the Ghairhaqdar was heritable, only in accordance with the provisions of s. 48 of the Code of 1935, and s. 48 deals with devolution of interest of a pattedar tenant, which status was never acquired by Mr. Mamanchandra Agarwal during his lifetime. Therefore, on facts, this Court holds that the Plaintiff was not a Ghairhaqdar tenant u/s. 57 of the Code of 1935 and neither did the interest in the suit property devolve upon the Plaintiff by operation of s. 48 of the Code of 1935 and therefore, does not come within the definition of a Bhumiswami by virtue of operation of s. 158(1)(d)(ii) of the Code of 1959.

39. Besides this, the Ld. Counsel for the Defendants has stated in his arguments that the suit property is required for a public purpose (widening of the road at the triangulation) and so, in view of the exception in s. 158(1)(d)(ii) of the Code of 1959, the Plaintiff does not acquire Bhumiswami rights.

40. As regards the judgment of this Court relied upon by the Learned Counsel for the Plaintiff reported as 1991 RN 215 - Raghuwansh Kumar Vs. State of MP, the co-ordinate bench of this Court held that a person who was a Ghairhaqdar under the State of Ajaygarh in Vindhya Pradesh could not be dispossessed of the land held by him from before the coming into force of the Code of 1959 and that he would be entitled to hold the lands which were not excepted by the bracketed portion of s. 158(1)(d)(ii) of the code of 1959. In fact, the proposition arrived at by this Court finds support in the judgment passed by the co-ordinate bench at paragraph 13 wherein it held that rights of a Pattedar tenant or Bhumiswami rights shall not accrue to the Plaintiff on lands required for public purposes. Thus, the said case does not support the cause of the Plaintiff.

41. In the course of the arguments, the Ld. Counsel for the Plaintiff referred to the lease entered into between the company and the Defendant which according to him was unauthorised by the Plaintiff, as it was the consistent case of the Plaintiff that he was the owner of the land by way of the Royal Grant and that there was no necessity for the company to have entered into a lease agreement for 3 years with the Defendant. This Court examined the said submission in the light of the record of this case. In this regard, Ex/P1 discloses an endorsement by the Nazul officer by hand which reflects that it was the Plaintiff who had handed over the lease deed entered into between the company and the Defendant between 1966 to 1969. Similarly, exhibit P2 reveals that the Plaintiff itself had handed over the copy of the lease deed entered into between the company and the Defendant and a handwritten entry to that effect is at s. no. 6 of Ex/P2, which reads "Proof of acquisition provided by the occupant". Thus, if the said lease was entered into between the company and the Defendant against the will of the Plaintiff, why was the same document used by the Plaintiff to establish how he came into possession of the said land It is also pertinent to mention here that if the possession of the Plaintiff were by way of the Royal Grant, the Plaintiff would have produced the same before the authorities or at least stated before it that the same has been lost. In this document, at s. no. 12, the Nazul officer has assessed a land revenue arrears of Rs. 20, 52, 112/- and an additional Rs. 1, 53, 908/- as annual land revenue on the suit properties. In the reverse of this document, there is an endorsement by the Nazul Officer that the Plaintiff had given an application to consider the possession of the suit property as an old occupation in accordance with law without imposing a premium on the Plaintiff. Upon this, the Nazul officer has reassessed the amount payable to the state as Rs. 26, 291/-. Thus Ex/P1 and P2 clearly reveal that it was the Plaintiff who had produced and relied upon the lease deed, alleged to have been entered into between the company and the Defendant between 1966 and 1969. Having relied upon the same, it is not for the Plaintiff to now claim in the course of arguments that the said lease was illegally entered into between the company and the Defendant, against the wish of the Plaintiff.

42. Another aspect that comes to the mind of this Court relating to the lease deed is that if the same was available with the Plaintiff (as is evident from Ex/P1 and P2), then why was the same never filed in the civil suit Did the lease deed bear the signature of the Plaintiff's proprietor, on behalf of the occupier/company, which would have adversely affected the case of the Plaintiff In this regard, s. 114(g) of the Evidence Act becomes relevant which provides "That evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it". The Plaintiff through his Ld. Counsel has also relied upon s. 114 of the Evidence Act, but clause (e) which reads "that judicial and official acts have been regularly performed". This presumption, the Ld. Counsel for the Plaintiff has relied upon to impress upon the Court that Ex/P1 and P2 being documents generated by the State, they shall be presumed as documents of unimpeachable integrity.

43. The Ld. Counsel for the Defendants has stated that the presumption u/s. 114 (e) of the Evidence Act raises a rebuttable presumption. Besides, he states that Ex/P1 and P2, relied upon by the Plaintiff only go to show the possession. He however states the fact relating to the antiquity of possession of the suit land by the Plaintiff is a question of fact and that the same had to be established by the Plaintiff alone. He further states that the factum of antiquated occupation of the suit property had to be established by the Plaintiff through documents of which he has none, and the only document that the Plaintiff has produced before the Nazul Officers which has been noted in Ex/P1 and 2, is the lease deed entered into between the company and the Defendant and therefore, the reliance by the Plaintiff on s. 114(e) of the Evidence Act does not assist his cause. This Court agrees with the proposition put forth by the Ld. Counsel for the Defendants. It was for the Plaintiff to establish that it was in antiquated occupation of the suit properties and the that the endorsement of the Nazul Officer in Ex/P1 and P2 that the Plaintiff was in old possession of the suit property cannot assist the Plaintiff as, the onus was on the Plaintiff to establish by way of documents that it was in possession since long of the suit property. The endorsement on Ex/P1 and P2 made by the Nazul officer was only on the basis of the information given by the Plaintiff which was accepted by the Nazul officer. However, in both the documents, the Plaintiff established his occupation of the suit property on the basis of the lease deed existing between the company and the Defendants from 1966-1960 and therefore the Plaintiff is now estopped from now taking the stand that the execution of the lease deed between the company and the Defendants was behind the back of the Plaintiff and not approved by the Plaintiff.

44. As regards the presumption against the Plaintiff u/s.114(g) is concerned, it is undisputed that the lease deed has not been placed before the Ld. Trial Court and neither was it ever relied upon by the Plaintiff. However, before this Court, in the course of arguments, the said document was sought to be rejected by the Plaintiff on the ground that the lease was never approved of by the Plaintiff as the Plaintiff's case was pivoted on the title of the land by way of the Royal Grant. As regards the question of title by way of the Royal Grant is considered, the same has been considered by this Court and rejected hereinabove. Therefore, the lease deed was not produced by the Plaintiff who apparently has possession over the same as it may have borne the signature of the Plaintiff or the Plaintiff's predecessor in interest on behalf of the lessee. However, it is not possible for this Court to hold that is the absence of any evidence to that effect. However, the non-production of the lease deed, though in possession of it, does raise the presumption against the Plaintiff that the production of the lease deed would have been adverse to the cause of the Plaintiff.

45. Ld. Counsel for the Plaintiff has submitted that the contention of the learned counsel for the Defendants that the Plaintiff has not pleaded the ground of adverse possession in its pleadings is incorrect. In order to buttress his submission, learned counsel for the Plaintiff has referred to paragraph 4 of the plaint where, in the last three lines it is mentioned that the Plaintiff has been in continuous possession of the suit property without any interference from any quarter. Likewise, attention of the Court has also been drawn to paragraph 7 where in the last four lines, the Plaintiff has stated that the Plaintiff has been having continuous and uninterrupted position of the suit property and there has never been any attempt by the state to dispossess him. In order to support his contention, the learned counsel for the Plaintiff upon judgment of a coordinate bench of this court passed in Gyanchand and Another Vs. Mohanlal and others - 2008 (3) MPLJ 231. In that case, the Plaintiffs also Appellants before the High Court had filed a suit for mandatory injunction that the portion was marked as ABCD in the map have been illegally encroached by the Defendants who dismantled the wall and raised construction on the space. It was prayed by the Plaintiff that a decree of perpetual injunction be granted against the Defendants so that in future the Defendants do not raise any construction on the suit property. The trial court had decreed the suit in favour of the Plaintiff against which the Defendants approached the first appellate court with set aside the decree and judgment passed by the learned trial on the ground that the Plaintiffs had not proved their title over the land on which the wall stood which was alleged to have been dismantled by the Defendants. The coordinate bench of this Court held that it was correct on the factual aspects of the case that the Plaintiffs had not filed any document to establish their title over the property on which the wall stood. However it went on to hold that it is a well settled principle of law that in civil cases, the standard of evidence is the preponderance of probability and that fact could be inferred on the basis of the statement of the Defendant that the Plaintiffs were the owner of the land on which the wall had stood which had been dismantled by the Defendants. The factual aspect of the present case distinguishes it from judgments cited by the learned counsel for the Plaintiff. In the judgment passed by the coordinate bench, the fact relating to the wall being built on the land of the Plaintiff was a fact that was admitted to by the Defendant and therefore its absence in the pleading was inconsequential. However, in the present case, learned counsel for the Defendants has submitted that in their written statement, they did not have to traverse the pleading of adverse possession which was half-hearted and not in consonance with the judgments of the Supreme Court which had laid down specifically, the prerequisites for a claim based on adverse possession. In order to support his submissions, the learned counsel for the Defendants has referred to the judgment of this Court in Keshar Bai and Ors., Vs. Ram Khilawan and anr., - 1993 RN 194, where a co-ordinate bench of this Court, on facts held as illegal, the finding of the first appellate Court that the Defendants/Respondents before it had perfected their title by way of adverse possession as there was no pleading to that effect and neither was it proved as to from what point of time the Defendant have asserted their hostile title.

46. The law relating to adverse possession is well settled. In R. Hanumaih Vs. State of Karnataka (2010) 5 SCC 203, the Supreme Court held in paragraph 22 that the mere use or occupation without the intention of claiming ownership will not be sufficient to create any right adverse to the Government. It further held that in order to oust the title of the Government, the party has to establish a clear title superior to the state or establish perfection of title by adverse possession for a period exceeding thirty years. Such possession must be open, visible, and hostile to the owner. The Ld. Trial Court has also referred to the judgment of the Supreme Court in P. Lakshmi Reddy Vs. Lakshmi Reddy - AIR 1957 Supreme Court 195 and also the judgment of the Supreme Court in Karnataka Board of Waqf Vs. Government of India - (2004) 10 SCC 779 and culled out the requirements under the law that a party claiming perfection of title through adverse possession has to establish (a) the date from which the he was in possession of the land (b) the nature of his possession/occupation. (c) whether the possession was in the knowledge of the person suffering the adversity (d) for how many days he continued to be in such possession and (e) whether the possession was vacant and peaceful. When the factual aspects of the alleged possession of the Plaintiff is seen in the backdrop of the present case, but for a feeble claim of adverse possession, the stand taken by the Plaintiff is one of title by Royal Grant, a document that was never produced before the Ld. Trial Court and neither was it proved by any other means.

47. In this regard, it has been argued by the Ld. Counsel for the Defendants that the Plaintiff must succeed on the strength of his own case and cannot take any advantage of the weakness of the adverse party. This proposition has finds support from the judgment of the Supreme Court in Syed Muhammad Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and Ors., wherein paragraph 8 it has been so held.

48. Ld. Counsel for the Defendant has also submitted that the plea of ownership based on title and plea of adverse possession are mutually contradictory and incompatible and therefore not permissible. In this regard, he has relied upon the judgment of the Supreme Court in Kesar Bai Vs. Genda Lal and Anr., - (2022) 10 SCC 217. In that case, the original Plaintiff had prayed for permanent injunction on the ground of title and in the alternative, on the grounds of adverse possession. The Trial Court rejected the suit and in first appeal, the Court granted permanent injunction on the ground of adverse possession. The Defendant preferred a Second Appeal before the High Court. Though the High Court came to the finding that relief of declaration of title and permanent injunction on the ground of adverse possession could not be claimed for simultaneously, it dismissed the second appeal on the ground that the original Plaintiff was in possession of the suit property since long. On appeal to the Supreme Court, the Court held that the two pleas of declaration on the basis of title and permanent injunction on the ground of adverse possession are mutually inconsistent and the same cannot be allowed. In this case also, the main contention of the Plaintiff before the Trial Court was for declaration on the basis of title by way of Royal Grant of the suit properties. However, before this Court, the flagship argument of the Plaintiff was the accrual of right as a Ghairhaqdar u/s. 57 of the Code of 1935 r/w s. 158(1)(d)(ii) of the Code of 1959, which has already been dealt with elaborately hereinabove. Along with the argument that the Plaintiff was a Ghairhaqdar, an additional plea was taken that in the worst-case scenario, the Plaintiff could only be a trespasser who had perfected his rights by adverse possession. Thus, as the specific pleadings disclosing the animus of the Plaintiff to rely upon the ground of adverse possession as one of the main planks for seeking relief before the Trial Court and in the absence of a specific date from which the possession of the Plaintiff had become adverse to the Defendant, this Court holds that the Plaintiff has miserably failed to establish a right to a decree of permanent injunction based on adverse possession.

49. Thus, there were three mutually incompatible stands taken by the Plaintiff before this Court they are (1) that the Plaintiff acquired title to the suit properties on the basis of the Royal Grant, (2) the Plaintiff was eligible for a declaration of title as a Ghairhaqdar and (3) that the Plaintiff was entitled to an order of permanent injunction on the grounds of adverse possession.

50. As regards the first stand of the Plaintiff that it had acquired title to the suit properties based upon the Royal Grant, the same has been considered and rejected in paragraph 28 supra.

51. As regards the second stand taken by the Plaintiff that he is eligible for a declaration of title as a Ghairhaqdar, the same relates to issue No. 2 at paragraph 27 supra, this Court has held in paragraph 38 supra that the Plaintiff does not qualify to be recognised as a Ghairhaqdar under the Code of 1935 and the answer to issue No. 2 is in the negative. Issue No. 3 is also related to the second stand taken by the Plaintiff which is whether the Plaintiff has acquired Bhumiswami rights u/s. 158(1)(d)(ii) of the Code of 1959. Issue No. 3 has been answered by this Court in paragraph 39 supra and it has been held that the Plaintiff is not the Bhumiswami of the suit property.

52. The third stand taken by the Plaintiff relates to issue No. 3 and 5 and this Court in paragraph 48 supra has held that the Plaintiff has not pleaded and proved adverse possession of the suit properties and therefore he has not perfected his title by adverse possession.

53. Thus, all the issues for consideration in this Appeal have been held against the Appellant/Plaintiff and therefore, this Court does not find any reason to interfere with the impugned order and upholds the judgment and decree passed by the Ld. Trial Court and resultantly, this appeal is dismissed.