U.C. Maheshwari, J.

1. The Appellant/Plaintiff has preferred this appeal under Section 100 of the Code of Civil Procedure, being aggrieved by the judgment and decree dated 2.8.03 passed by II nd Addl. District Judge, Gadarwara in Civil Regular Appeal No. 4-A/03, affirming the judgment and decree dated 12.8.02 passed by Civil Judge Class-II, Gadarwara in Civil Original Suit No. 60-A/2002, dismissing his suit filed for declaration and perpetual injunction with respect of the revenue land of village Ishwarpur bearing survey No. 48/1 and 48/3 area 1.789 and 0.809 hectare respectively recorded in the name of Respondent state of Madhya Pradesh.

2. The facts giving rise to this appeal in short are that the Appellant herein filed the above mentioned suit for the above mentioned disputed land situated adjoining to his personal agricultural land bearing survey No. 538 contending that he being in possession of the same from the time of his forefathers since last 80 years, has perfected his right of Bhumi Swami on it. As per further pleading; he being the holder of small piece of his owns land less then 2.000 hectare comes under the category of "marginal farmer" defined under the provision of Krishi Prayojan ke Liye Ki Ja Rahi Dakhal Rahit Bhumi Par Bhumi Swami Adhikaron Ka Praday Kiya Jana "Vishesha Upbandh" Adhiniyam, 1984 (in short the Act) by virtue of other provisions of such Act has become the Bhumi Swami of the disputed land but the Patwari of the concerning area, namely, Laxmi Prasad, under some conspiracy with his oppositers made a complaint to Tehsildar stating that on the disputed land under Gram Smridhi Yojna (Village Development Scheme) different type of plantation was carried out and in such premises the Appellants possession was shown to be unauthorized possession while no such plantation was carried out on such land. On such complaint of Patwari, the Revenue Case No. 34-A/68/99-2000 was registered against him and on consideration, vide order dated 21.8.02 in such proceedings, by holding the possession of the Appellant as encroacher, the order to remove the possession was passed, on which, he filed the appeal before Sub Divisional Officer, Gadarwara. The same is still pending. It is also stated that Respondent, being State, the Revenue Officials and Police Officers are working under its authority, hence, at any moment, with their assistance, he may be dispossessed from the above mentioned land. The Appellant, being in possession of the aforesaid land prior to 2.10.84 has perfected the right of Bhumi Swami under the provision of Krishi Prayojan ke Liye Ki Ja Rahi Dakhal Rahit Bhumi Par Bhumi Swami Adhikaron Ka Praday Kiya Jana "Vishesha Upbandh" Adhiniyam, 1984 and also by adverse possession and, in such premises, no right or title of the Respondent has been remained in existence. With these pleadings, the aforesaid suit for declaration and perpetual injunction for protecting his possession, is filed.

3. The Respondent/State of Madhya Pradesh remained ex-parte in the trial Court. In such premises, no written statement was filed on its behalf. After recording the ex-parte evidence of the Appellant, on appreciation of the same, his suit was dismissed by the trial Court. On filing the appeal, against such dismissal, on consideration, the same was also dismissed by the appellate Court, on which, the Appellant has come forward to this Court with this appeal.

4. Applicants counsel after taking me through the pleadings, evidence and the exhibited documents argued that in view of his un-rebutted evidence proving his title over the land, the Courts below ought to have decreed his suit but the same has been dismissed under the wrong premises. In addition, he said that he being in possession and cultivation of the aforesaid land since last 100 years, has perfected his right as Bhumi Swami of it. In any case, he being marginal farmer, has perfected the right of Bhumi Swami under the provisions of the above mentioned Act. In such premises by placing reliance on unreported case of this Court in the matter of Prahlad S/o Bihari Ahirwar v. State of M.P decided vide dated 27.2.2008 in S.A. No. 1330/06 prayed for admission of this appeal on the proposed substantial questions of law mentioned in the appeal memo.

5. Having heard the counsel, keeping in view his argument, I have carefully examined the record and also perused the impugned judgment. As per concurrent findings of the Courts below the Appellant could not prove his case by producing any admissible, reliable evidence and documents that he is in legal possession of such land or perfected his right of Bhumi Swami by adverse possession or otherwise on such land. On the contrary, the Courts below, taking into consideration, the order dated 21.8.02 passed in Revenue Case No. 34-A/68/99-2000 initiated against the applicant under Section 248 of the M.P. Land Revenue Code directing removal of his illegal possession as encroacher over the disputed land concurrently held such illegal possession of the encroacher, could not be protected declaring him to be the Bhumi swami of such land and issuing perpetual injunction as prayed. In such premises, both the Courts below concurrently, on appreciation of evidence and the documents, had not found the legal and lawful possession of the Appellant over the land.

6. It is settled proposition of the law that concurrent findings of the Courts below based on appreciation of the evidence on the question of adverse possession, being findings of fact, could not be interfered under Section 100 of the Code of Civil Procedure at this stage of second appeal as laid down by this Court in the matter of Seeganram v. Magnia-1986 (1) MPWN 87 and Ram Singh v. Kashiram-1997 Revenue Nirnaya 195. In view of such legal position, this appeal does not involve any substantial question of law on the issue of adverse possession requiring any consideration under Section 100 of the Code of Civil Procedure at this stage.

7. Apart the above, in any case, the Appellant was not found in legal possession of the same and whenever the possession of the parties is not lawful or legal then the same could not be protected by issuing or granting perpetual injunction in favour of such party and against the true owner or recorded Bhumi Swami of land. My such view if fully fortified by the decision of the Apex Court in the matter of Gangubai Babiya Choudhary and Ors. v. Sitaram Bgalchandra Sukhtankar and Ors. : AIR 1983 SC 742 in which some observations regarding this question has been made. Such principle is further followed by this Court in the matter of Kamal Singh v. Jairam Singh 1986 MPWN(1) 116. So in such premises also this appeal does not involve any substantial question of law.

8. So far the aforesaid case law in the matter of Prahlad (supra) cited on behalf of the Appellant is concerned, firstly, in view of the aforesaid decision of the Apex Court and the earlier decision of this Court, the same is not helping to the Appellant as the same was passed without taking into consideration the aforesaid view of the Apex Court as well as the earlier of this Court. Secondly, in the cited case, the concerning Appellant was extended liberty to approach the authority to get decided his right from the competent authority under the provisions of above mentioned Act of 1984 and limited interest of such Appellant was protected. While deciding such case, the provision of Section 41(h) of the Specific Relief Act was not taken into consideration. According to such provision of the Specific Relief Act whenever the alternative forum for efficacious relief is available then the equitable relief of perpetual injunction could not be granted by the civil Court under the general law and, in such premises also such citation is not helping to the Appellant. At this stage, it is made clear that if the Appellant has perfected his right under the aforesaid Adhiniyam of 1984 even then such right could not be conferred by the civil Court under the general law. The Appellant has to file appropriate proceedings under the aforesaid Adhiniyam and its Rules before the authority appointed for the same to confer such right of Bhumi Swami on him. In such premises also this appeal does not involve any substantial question of law.

9. In view of the aforesaid discussion, I have not found any substance or circumstance giving rise to any substantial question of law requiring any consideration under Section 100 of the Code of Civil Procedure at this stage, hence this appeal deserves to be and is hereby dismissed at the motion hearing stage. There shall be no order as to the cost. However, it is made clear that this order shall not come in the way of the Appellant in prosecuting the application or proceeding under the aforesaid Adhiniyam of 1984 and on filing such proceedings by the Appellant, the same may be considered by the authority appointed under such Adhiniyam in accordance with the prescribed procedure without influencing any observation made in this order or in the judgment and decree passed by the Courts below.

10. The appeal is dismissed at the stage of motion hearing with aforesaid observation.