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11. In reply Shri Shastri, learned counsel for Respondent/plaintiff supported the Judgments and decree granted by both the Courts below. His further submission is that Question No. 1 whether a person is sub-tenant or not is a pure question of fact and this question of fact cannot be disturbed in second appeal and for that he placed reliance on a decision reported in AIR 1974 SC 280; 1984 MPWN 404, He further submitted that it was specifically pleaded in the written-statement that Daula was granted Patta for one year for the Samvat 2004 only and the place village Pawasa was Raiyatwari Village of the erstwhile Qwaltor State and in that village Ujjain Kanoon Raiyatwarl Riyasat Gwalior, Samvat 1974 was made applicable. In Kanoon Ralyatwarl, Shikmi is defined as the person who was taking the land on lease from the tenant enumerated in the Act, cultivated the land, agreed to pay rent and every tenant was given a right to cultivate the land personally or through a Shlkmi i.e. sub-tenant. The rights of a sub-tenant i.e. Shlkmi are nowhere defined in Kanoon Raiyatwari and there was no restriction over tenants to sub-let the land in question and, therefore his further submission was that the rights of a Shlkmi and their landlord were being governed by the terms of Patta and there was no legal protection to this Shlkmi i.e. subtenant by Kanoon Raiyatwari. His further submission was that the burden lies on a person who claims to be sub-tenant. His further submission was that Pannibai was widow, the terms of Patta expired on 30th June, 1948, much prior to coming into force of the Madhya Bharat Land Revenue, which came into force on 1-5-1950. In Madhya Bharat Land Revenue and Tenancy Act, there is a restriction on sub-letting the land and there was another Act namely Madhya Bharat Raiyatwari Sub-lessee Protection Act, 1955, which came into force on 19th October, 1955, in which rights of the sub-tenant were protected. The so called sub-tenant ought to make payment of rent to the landlord or to deposit it in the Court. The defendant/appellant neither pleaded nor proved the payment of rent or deposit of rent in Court. Moreso the documents filed by the appellant/defendant, Exs. D/11 to D/23, the name of sub-tenant does not appear in the Khasra entries. Therefore, by any documentary or oral evidence the appellant/ defendant No. 1 thus had failed to prove the sub-tenancy. His ultimate submission was that at the most he could be treated as trespasser and a trespasser does not acquire status of Pucca tenant and in support he relied on a decision reported in AIR 1970 SC 483. His submission was that the provisions of Section 52 of the Transfer of Property Act are not applicable as the restitution proceedings were not in the nature of suit. There was no adjudication of rights and, therefore, the sale is not affected by the principle of Lis-pendens. The ample opportunity of hearing was afforded to defendant No. 1 to lead evidence to prove his case from the very beginning and the documents which were produced never made out a case of sub-tenancy in favour of the appellant/ defendant. An application, I.A. No. 5, for production of documents was filed and allowed on 12-12-1972. I.A. No. 8 for marking of exhibit that too was allowed on 13-2-1974 and, therefore, the defendant had opportunity to lead evidence but he did not choose to lead the same and he himself had closed the case.

16. In the case of Gajraj Singh v. Jagat Singh, reported in 1970 Revenue Nirnaya 133 (HC) (DB), it was held that the Shikmi continuing to hold land till enforcement of the Code -- became occupancy tenant under the Code. Therefore, it was necessary for the appellant to plead and prove that he remained in possession continuously from Samvat 2004 (1947) till 2-10-1959, but the factual position in this case is not like this, The first appellate Court has observed that right from 20-4-1949 till 19-1-1967 the appellant remained out of possession. Therefore, it is very much clear that if a Patta was granted for a period of one year and which was not barred under the relevant laws after the expiry of period of Patta for possession and in pursuance of the order of Revenue Court dated 31-5-1948 the possession was obtained on 20-4-1949 may be wrongly as argued by appellant then it cannot be argued by the appellant that he continuously remained in possession up to 2-10-1959 to obtain a right of occupancy tenant in the land.

17. In support of decree granted by the two Courts below in favour of the Respondent/plaintiff, the submission of Shri Shastri, learned counsel for Respondent is that the Question No. 1 whether a person is sub-tenant or not is a question of fact and for that finding of facts has been confirmed by both the Courts and this question of fact cannot be disturbed in second appeal and he placed reliance on AIR 1974 SC 280. His further submission is that the village Pawasa where the land in dispute situated was a Raiyatwari village of the erstwhile Gwalior State and Kanoon Raiyatwari Riyasat Gwalior, Samvat 1974 was applicable. In Kanoon Raiyatwari, Shikmi is defined as the person who after taking the land on lease from the tenant, cultivated the land, agreed to pay rent and the rights of sub-tenant i.e. Shikmi were nowhere defined in Kanoon Raiyatwari and there was no restriction on tenants to sublet the land in question. Therefore, his submission was that whatever the rights were, they were governed by the terms of Patta and there was no protection or right extended by inheritance to the Shikmi and both the Courts have concurrently held and it was further submitted that both the Courts have held that neither existence of Patta nor the contents of Patta were produced and proved that the sub-tenant was regularly paying rent and it was the burden on the person who claims to be a sub-tenant. He further submitted that the terms of Patta expired on 30th June, 1948, much prior to coming into force of M. B. Land Revenue and Tenancy Act. which came into force on 1-5-1950 under which restrictions were imposed on subletting the land. Another Act was also enacted to protect the rights of sub-tenants i.e. Madhya Bharat Raiyatwari Sub-Lessee Protection Act, 1955. which came into force on 19th October, 1955 but on the date when these two Acts came into force, the appellant or his predecessor Daula was not in possession over the lands as a tenant/sub-tenant. Therefore, the appellant/defendant has thus failed to prove the case of sub-tenancy. Therefore, the Courts below have not committed any illegality in recording a finding that the appellant/defendant has not acquired any Bhumiswami rights.