OMKARLAL @ UMKARLAL (DEAD) THROUGH LRS DWARKA PRASAD AND OTHERS Vs. SARDAR KHAN (DEAD) THROUGH LRS KISMAT BAI AND OTHERS

JUDGEMENT

(1.) Contending that an accidental slip/ omission has crept in the judgment and decree dated 18/08/2005 in Second Appeal No. 82/1998, the appellant/ plaintiff has filed this application under Section 152 Code of Civil Procedure, 1908, for correction thereof.

(2.) The plaintiff had filed a suit for declaration and permanent injunction in respect of suit property bearing Survey No. 362 admeasuring 20 Bigha 12 Biswa contending inter alia that the suit property was leased out by Tahsildar, Ashok Nagar, in the year 1960 which was cancelled by the Tahsildar by order dated 5. 3. 1962 in a suo motu proceedings whereagainst the appellant-plaintiff filed an appeal. Sub Divisional Officer by its order dated 8. 6. 1962 affirmed the order of Tahsildar, however, the said order was set aside in Second Appeal preferred before Commissioner, Gwalior Division, Gwalior, vide order dated 31. 1963. The matter was remanded for decision afresh whereon Sub Divisional Officer vide order dated 27. 1. 1965 set aside the order dated 5. 3. 1962 passed by the Tahsildar, Ashoknagar. It was further contended that during the currency of the lease of appellant-plaintiff as the order of Tahsildar was set aside by order dated 30. 5. 1966, Tahsildar Ashoknagar leased out the property to respondent no. 1 for which a civil suit was filed. The said contention raised on behalf of appellant-plaintiff was however contradicted by the respondents no. 1 and It was urged on behalf of the respondent no. 1 that vide order dated 23. 5. 1966 (Ex. D. 1) lease of appellant-plaintiff was cancelled. As such he had no right over the suit property. The respondent no. 2 i. e. State of M. P. through Collector Guna contended that in various review proceedings before revenue authorities ultimately the order was passed on 1 3. 1982, whereby rights of the parties have been determined and it has been held that lease of the appellant-plaintiff was illegal and possession of the appellants are that of encroacher, therefore, property was rightly given to respondent no. 1.

(3.) On these facts the trial Court decreed the suit by judgment and decree dated 10/12/1996 (Civil Suit No. 103A/1987). The said judgment and decree was set aside by the First Appellate Court vide judgment and decree dated 05/11/1997 holding the plaintiff to be encroacher over suit property.