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2. The plaintiffs/respondents who are successors in interest of Toran Lal, Bhav Singh and Hemnath filed a suit for declaration, possession and permanent injunction in respect of the tanks in dispute on the pleadings that their forefathers Toran Lal, Bhav Singh & Hemnath were the owners of the two tanks situated in khasra no.81 and khasra No.142 of Village-Chandrakhuri which was constructed by their forefathers a hundred years before and since then they have remained in continuous possession of the same. As pleaded in the plaint, the two tanks were settled in favour of late Toran Lal S/o Hannu, Bhav Singh S/o Umendi and Hemnath S/o Nandu in the settlement of 1929-30. Further pleading was that the aforesaid two tanks and their embankments were recorded in malik makbuja rights of plaintiffs' three ancestors namely Nandu, Hannu and Bhavsingh in the settlement records of 1910-11 under old khasra and those ancestors were in possession of tanks and embankments. Further pleading in the plaint was that Toran Lal, Bhav Singh and Hemnath used to grow and yield rice and other water crops like betels and also rear fish. After death of Toran Lal, Bhav Singh and Hemnath, their successors/plaintiffs remained in cultivating possession of the tanks and embankments along with trees and orchids. In the year 1908, the then Malgujar (Ex-proprietor) Reva Sai, S/o Devdhar had accepted the title of Hannu and Nandu in ' malik makbuja rights' and entered into an agreement for irrigation of his own lands from these tanks vide registered agreement dated 12.10.1908. Later on, Reva Sai filed a suit for correction of missal bandobast records of 1929-30 and for recording his own name along with Toran, Bhavsingh and Hemnath, which was denied by Hemnath and others and a compromise decree was finally passed on 14.3.1932 declaring title of Hemnath, Bhav Singh and Toran in respect of tanks admeasuring 5.36 acres situated in kh. No.81 area 5.36 acres and kh. No.142 area 17 acres. Though under certain conditions, Reva Sai was granted a facility of irrigating his own agricultural land and in this manner settlement entries of 1929-30 were maintained in favour of Hemnath, Bhav Singh and Toran in respect of the aforesaid two tanks, later on, Reva Sai sold his land to others and as the agricultural activity on those lands of Reva Sai was stopped, no irrigation facility was being provided from the two tanks and the water of the two tanks was being used for irrigating the lands of Hemnath, Bhav Singh and Toran Lal. The plaintiffs further pleaded that their ancestors were not proprietors (malgujar) but were Kastkar (cultivators). Upon promulgation of Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter referred to as the "Act of 1950"), the Compensation Officer vide order dated 20th February 1952 though recorded the two tanks in possession of the plaintiffs and their ancestors, but remarked that the two tanks vested in the State. According to plaintiffs, the ancestors of the plaintiffs being kastkar (cultivators) and not Malgujar (proprietor), the two tanks could not be declared as having vested in the State under the provision of the Act of 1950. A suit was filed by Beniram and Ors. for declaration of their title, registered as Civil Suit No. 5A/1956. An application for recording the tanks in the name of Beniram, &Ors. was submitted before the Sub Divisional Officer, who after enquiry, passed an order that the two tanks belong to Beniram, Khomu Gayadeen and others as per report dated 18.7.1957 of Nayab Tehsildar, Durg. The plaintiffs were declared as bhumi-dhari vide order of the Collector dated 20.5.1957 on the basis of report dated 18.7.1957 of the Sub Divisional Officer fixing land revenue also consequent upon which name of Beniram and Toran Lal and others were recorded in the revenue records in their bhumi-dhari rights. As the State accepted bhumi-dhari title of the plaintiffs, Civil Suit No. 5A/1956 was withdrawn. In course of time, Banshi Lal and others (successors of ex-malgujar Reva Sai) interfered with the possession of the plaintiffs in respect of the Tank No.142 in 1957 which led to filing of another Civil Suit No.9B/1958 in the Court of Civil Judge Class-I Durg against Govind, Banshi and Ors, in which, title of the plaintiff was recorded and a decree awarding compensation was passed in favour of plaintiff on 21.2.1961.

14. The plaintiffs in the present case have sought for declaration that they are the owners in title of two tanks in dispute and for a relief of recovery of possession of the two tanks. Their pleadings, as mentioned earlier, is mainly based on a title inherited through their forefathers/predecessors in title namely Toran, Bhav Singh and Hemnath on the pleading, inter alia, that the two tanks were held in malik makbuja rights and so recognized ever since settlement of 1910-11 which were, later on, recorded in the same capacity in their possession in subsequent settlement in the year 1929-30 i.e. in their capacity as malik makbuja. According to the plaintiffs the then Proprietor (malgujar) Reva Sai had admitted title of Bhav Singh and Toran under agreement of 1908 (Ex.P-1) under which he was allowed to take water for irrigation of his agricultural fields. According to the plaintiffs, later on, when upon settlement in 1929-30, the names of Toran & Ors. were recorded in malik makbuja rights over the disputed tanks, the ex-proprietor (malgujar) Reva Sai filed a suit that he is also entitled to be recorded jointly along with Toran and Ors in malik makbuja rights in respect of two tanks which ended in a compromise decree passed by the trial Court on 14.3.1932 recording that Reva Sai admitted the malgujari rights and title of Toran and ors. According to the plaintiffs, as these tanks were held by Toran Lal and Ors. as kastkar (cultivators) and not proprietors (malgujar), upon coming into force of the Act of 1950, the two tanks could not be declared as having vested in the State and an order was passed on 20.2.1952 by the compensation officer allowing possession of Toran and ors though stating the tanks having vested in the State. Later on, when these two tanks were recorded as nistari tanks, the predecessor in title of the plaintiffs approached the revenue authority for correction and deletion of nistari entries, upon which, an order was passed by the Collector on 20.5.1957 in revenue proceedings directing correction of nistar patrak. The suit earlier filed by Beniram (successor of Toran & Ors) against the State for declaration that two tanks belonged to the plaintiff was later on withdrawn in view of order passed by the Collector. An order was passed on 18.5.1957 by the Deputy Commissioner in favour of Beniram and ors. granting bhumidhari rights followed by an order dated 20.5.1957 approving assessment of land revenue in respect of two tanks. In course of time, Banshi lal and Ors. again attempted to disturb the plaintiffs' possession which led to filing of another suit Civil Suit No.9B/1958 which was decreed in favour of the plaintiffs, again affirming their rights to possession of tanks. In course of time, when the State authority purported to transfer the tank to Panchayat and the Panchayat granted lease of tanks in favour of Fishermen Society, the plaintiffs filed a fresh suit No.7A/1963 which was decreed in their favour on 6.4.1964. An appeal preferred against such decree and judgment was, however, allowed by the High Court vide order passed in appeal on 6.8.1969 (Ex.P-31) against which the plaintiffs filed a SLP in the Supreme Court and vide order dated 30.7.1981, the Supreme Court granted permission to the plaintiff to withdraw the suit with liberty to file fresh suit on the same cause of action or on different cause of action. Therefore, the it was in this background that present suit was filed by the plaintiffs.

It would show that though Beniram had moved an application before the Compensation Officer, the same did not receive any attention. Beniram and others were claiming that though they had succeeded to two tanks from their forefather in the background that the then Malgujar (Ex- proprietor) Reva Sai admitted malik makbuja rights of those predecessors in title of Beniram and other under an agreement as also under a civil suit decided in 1932. That means that Beniram were claiming title in the tanks in malik makbuja rights and not claiming any interest in proprietary rights in respect of the two tanks through the proprietor. Obviously, this was in the nature of a question regarding proprietary rights in the two tanks which was required to be inquired into, though summarily, by the Compensation Officer in accordance with the statutory scheme of Section 14 of the Act of 1950. But the Compensation Officer neither made any enquiry nor gave any order on such question and mechanically recorded in its order dated 20.2.1952 that the two tanks are vested in the State by treating Toran & Ors. as a tenant of ex- malgujar Reva Sai who in earlier suit filed by him, referred to above, had admitted title of Toran and Ors. and on which basis compromise decree was also passed in the year 1932. In sum and substance, order dated 22.2.1952 was made in the nature of an order passed under Section 13 of the Act of 1950 rather than enquiry and determination of question regarding proprietary right. Therefore, the said order cannot be said to be an order under Section 14 (1) so as to cloth it with finality as envisaged under Section (2) thereof. Had it been a determination of the question regarding proprietary rights on the application so filed before it, by the Compensation Officer, though in a summary manner, it would have obliged the plaintiff/their forefathers to challenge that order within the period of 2 months before the Civil Court in the State failing which the order would have attained finality. Therefore, I am not inclined to accept the submission of learned counsel for the appellants that finality is attached to order dated 20.2.1952 of the Compensation Officer so as to bar a suit in view of finality attached to it under sub-section (2) of Section 14 of the Act.

35. From the pleadings in the plaint, written statement oral and documentary evidence led by the plaintiffs and defendants, it is proved that the predecessor in title of the plaintiffs including Nandu, Hannu and Bhavsingh and thereafter Toran, Hemnath and Bhavsingh remained in cultivating possession of the two tanks and they used to take water crops like singhara, pashra rice etc and also rear fish. The oral and documentary evidence proved possession of predecessor in title of the plaintiff since 1910-11. Though in the pleadings and in the evidence, the plaintiffs have come out with the case that they were in possession of two tanks in their own rights i.e. malik makbuja, in all revenue records prior to 1950, particularly the settlement records of 1910-11 as well as 1929-30 they were only recorded as holder of possession whereas the name of ex-malgujar Reva Sai was recorded as Malgujar of two tanks. It is also proved that the two tanks were recorded as nistari land and according to evidence of both the parties, the land were being used by the villagers for nistari purpose i.e. for bathing, cleaning of cattle. There is no clinching evidence either in the revenue records or in the oral evidence that water of the two tanks was being used for agricultural purposes by the villagers. The only evidence is of use of the water of these two tanks for irrigating five agricultural fields of ex-proprietor Rewa Sai. It has also come in the evidence that later on Reva Sai sold out the five agricultural land and those lands no longer remained agricultural land and hence, later on, there was no occasion for supply or drawl of water of two tanks for irrigating those five agricultural fields of ex- malgujar Rewa Sai.