JUDGMENT 1. The plaintiff has filed this second appeal against the judgment and, decree dated 15.3.2000 passed by learned Second Additional District Judge, Ashoknagar, District Guna in Civil Appeal No. 17 -N99 (Harchand v. Balveer Singh and another) whereby the judgment and decree dated 7.10.1999 passed by learned First Civil Judge Class-II Ashoknagar, District Guna (Balveer Singh v. Harchand and one another) decreeing the suit of plaintiff has been reversed and set aside. 2. Plaintiff-Balveer Singh filed a suit against the defendant-Harchand arraying State of Madhya Pradesh as defendant No. 2/proforma party and by praying to declare him the Bhumiswami of the agricultural land (hereinafter referred to as the 'suit land') as well as for deleting the name of defendant No. 1 in the revenue record as Bhumiswami with a further prayer that his name be mutated and further for grant of decree of injunction that defendant No.-l Harchand may not interfere in his possession. 3. According to the plaint averments, the plaintiff is the Bhumiswami of the suit land and his name was mutated in the revenue record. A Bhu Adhikar Pustika (statutory document) has also been provided to him. According to the plaintiff he is possessing the suit property. In para 2 of his plaint, the plaintiff has pleaded the source of his title and according to him, vide registered sale deed dated 31.3.1979 he bought the suit property for a consideration of Rs. 7,000/- from AIjun Singh and Maharaj Singh. On the date of sale plaintiff was minor and the suit property was purchased by him through his father Jot Singh under his guardianship, and since, from the date of sale the plaintiff is possessing the suit property. 4. Further it has been pleaded by the plaintiff that defendant No.1 is having one brother namely Pannalal, who happened to be the Patwari of Village Nageshri and against him the plaintiff's father and brother made the complaints, as a result of which, said Patwari is keeping enmity with him and he has been attached in Tahsil, Ashoknagar and the departmental enquiry is also pending against him. According to the plaintiff, on 28.12.1993 defendant No.1 came in Village Nageshri and interacted with the villagers that his brother Pannalal has endorsed his (defendant No.1 's) name in the revenue record, and now, he (defendant No.1) would cut the crop of Gram. According to the plaintiff, on 28.12.1993 defendant No.1 came in Village Nageshri and interacted with the villagers that his brother Pannalal has endorsed his (defendant No.1 's) name in the revenue record, and now, he (defendant No.1) would cut the crop of Gram. On coming into the knowledge of this, the plaintiff narrated it to his father and brother. Thereafter the elder brother of plaintiff namely Gajram Singh went to Tahsil office and on 3.1.1994 on receiving the copy of the Khasra for the first time plaintiff came to know that defendant No.1 anyhow got his name mutated in the revenue record as the Bumiswami on the basis of case No.1-A46/80-90 vide order of Tahsil dated 15.2.1990. Thereafter the father of plaintiff inspected the said file of Tahsil and found that without any service on the plaintiff, an order has been obtained. According to the plaintiff the said order is null and void and by that order no rights are conferred to defendant No.1 nor his rights are extinguished. On these premised pleadings, the plaintiff filed the present suit and sought reliefs which I have mentioned hereinabove. 5. The defendant No.1 by filing written statement denied the plaint averments and pleaded that the plaintiff is not the Bhumiswami of the suit property. According to him, indeed he is the Bhumiswami having possession on the suit property and is cultavating the suit land. It has also been pleaded that plaintiff never cultivated the suit land. The defendant No.1, who is the Bhumiswami having possession on the suit property, is also paying the land revenue. The Bhu Adhikar Evam Rin Pustika is with him and in the revenue record his name as Bhumiswami having possession on the suit land has been mentioned. 6. The factum of purchasing the suit property vide registered sale deed dated 31.3.1979 by plaintiff has been denied by pleading that this fact is not in the knowledge of defendant No.1. The other averments made in the plaint are also specifically denied in the written statement. 7. The defendant No. 1 amended his written statement on 16.9.1998 and by amendment pleaded that in the month of Baisakh (June) of Sam vat 2042 (corresponding year 1984-1985), he (defendant No.1) took the suit property on Shikmi (lease) basis. The exact date is not remembered to defendant No.1. 7. The defendant No. 1 amended his written statement on 16.9.1998 and by amendment pleaded that in the month of Baisakh (June) of Sam vat 2042 (corresponding year 1984-1985), he (defendant No.1) took the suit property on Shikmi (lease) basis. The exact date is not remembered to defendant No.1. It has also been pleaded by him that lease is oral and the suit land was given on the condition that defendant No.1 would pay the land revenue. The possession of the suit property was also delivered to him by the plaintiff, and accordingly, the name of defendant No.1 has been mentioned in the revenue record as Shikmi (lessee). According to the defendant No.1., by operation of the provisions of M.P. Land Revenue Code, 1959 (hereinafter referred to as "the Code") the Bhumiswami rights are conferred in him, and accordingly, Tahsildar passed on order in his favour in the proceedings under section 190 and 110 of the Code. Against the order of Tahsildar, plaintiff filed an appeal before the Sub Divisional Officer, which has been allowed and defendant No.1. has filed the second appeal before the Revenue Commissioner which is pending. According to the defendant No.1, he is possessing the suit property since Samvat 2042 and is also cultivating the same. 8. The plaintiff, accordingly, also amended his plaint and specifically denied the pleadings of defendant No.1 that the suit property was given to him by plaintiff on Shikmi basis. Further it has been pleaded that with the collusion of Pannalal Patwari the order from Tahsil was obtained by defendant No.1 which has been set aside by the Sub-Divisional Officer. According to the plaintiff, his date of birth is 5.10.1969 and in Samvat 2042 his age was in between 14 to 15 years and he was a minor, and therefore, the question of entering him into the contract with defendant No.1 to give the land on lease does not arise. 9. On the basis of averments made in the plaint and the denial in the written statement, the learned Trial Court framed necessary issues and after recording the evidence of the parties decreed the suit of the plaintiff. 10. 9. On the basis of averments made in the plaint and the denial in the written statement, the learned Trial Court framed necessary issues and after recording the evidence of the parties decreed the suit of the plaintiff. 10. The defendant No. 1 thereafter filed First Appeal before the learned First Appellate Court and the learned First Appellate Court by holding that the suit property was given by plaintiff, who was minor at that time, to defendant No.1 on Shikmi basis and since the lease was in contravention to section 168 of the Code, the defendant No.1 became occupancy tenant under section 169 of the Code and by operation of law became Bhumiswami under section 189 and 190 of the Code. The learned First Appellate Court further found that plaintiff is not possession of the suit property, on the other hand the possession of defendant No.1 has been found on the suit property. The learned First Appellate Court, hence, dismissed the suit of plaintiff and further held that because the possession of the suit property was obtained by the plaintiff during pendency of the appeal, the defendant No.1 shall be entitled for possession and he shall also be entitled for mesne profit at the rate of Rs. 7,000/- per annum for three years in total Rs. 21,000/- and defendant No.1 is further entitled to withdraw an amount of Rs. 3,000/- which he deposited towards the costs. 11. In this manner, this second appeal has been preferred by the plaintiff assailing the judgment and decree passed by learned First Appellate Court. 12. This Court on 4.4.2000 admitted this second appeal on the following substantial questions of law: "(1) Whether the lower appellate Court has erred in law in determining the status of the defendant to be that of an occupancy tenant as contemplated under the provisions of M.P. Land Revenue Code omitting altogether to consider the fact that on the own showing of the defendant the alleged lease was protected under section 168 of the M.P. Land Revenue Code? (2) Whether the Court below has erred in law in carving out a new case for the defendant contrary to the specific pleadings contained in para 4 (a) of the written statement and further utilising the evidence which was contrary to the aforesaid pleadings? (2) Whether the Court below has erred in law in carving out a new case for the defendant contrary to the specific pleadings contained in para 4 (a) of the written statement and further utilising the evidence which was contrary to the aforesaid pleadings? (3) Whether the Court below has erred in law in basing the findings returned against the plaintiff on the alleged admission said to have been contained in the deposition recorded before the Tehsildar in the proceedings in Case No.I-N46/89-90, which even on the findings recorded was wholly irrelevant? (4) Whether the findings recorded by the lower appellate Court on the question of title and possession returned in favour of the defendant are vitiated in law on account of being based on wholly irrelevant considerations and erroneous assumptions?" 13. The contention of Shri Rajmani Bansal, learned counsel for appellant is that the factum of giving the suit property as stated by the defendant No.1 on the basis of Shikmi (lessee), since neither the defendant No.1 has pleaded the terms of the contract of the lease, nor it has been pleaded that what was the consideration, and therefore, the case of defendant No.1 set up in his written statement that the relationship between him and plaintiff is that of lessor and lessee, in absence of necessary pleadings in that regard cannot be said to be proved. In support of his contention learned counsel for appellant has placed reliance on two decisions of Supreme Court they are Juthika Mulick (Smt.) and another v. Dr. Mahendra Yashwant Baland others [ (1995) 1 SCC 560 ] and Puran Singh Sahni v. Sundari Bhagwandas Kriplani (Smt.), [ (1991) 2 SCC 180 ]. Learned counsel has also placed reliance on two decision of this Court they are Bachoo v. Imratlal and another, 1991 RN 256 and Kanai v. Krishna Kumar [1978 (II) MPWN 224]. 14. It has also been put forth by learned counsel for appellant that the order of Tahsil, by which it was held that defendant No.1 became occupancy tenant and thereafter Bhumiswami and directed to mutate his name in the revenue record, has been set aside by the Sub Divisional Officer and it has been further directed by the SDO to restore the name of plaintiff in the revenue record. But, there is no reference of this order of SDO in the impugned judgment. 15. But, there is no reference of this order of SDO in the impugned judgment. 15. Further it has been argued by learned counsel for appellant that on his own showing by defendant No.1 that the plaintiff was minor in Samvat 2042, therefore, even if it is taken into consideration that the land was leased out to defendant No.1, the right of plaintiff are protected under section 168 (2) of the Code, because plaintiff was minor in Samvat 2042. 16. By challenging the findings of learned First Appellate Court, it has been submitted by learned counsel that the learned First Appellate Court has craved out a new case for defendant No.1 de hors to his own pleadings in para 4 (a) of his written statement and the evidence which has been relied upon is contrary to the pleadings. It has also been put forth by learned counsel that the finding of learned First Appellate Court that there is an admission of plaintiff in favour of defendant No.1 is wholly irrelevant in the facts and circumstances of the case and the judgment of learned First Appellate Court is based on erroneous assumptions. In these state of affairs, it has been contended by learned counsel that this is a fit case where this Court should interfer by setting side the impugned judgment of learned First Appellate Court under section 100 of CPC. In support of his contention learned counsel has placed heavy reliance on two decisions of the Supreme Court they are Ishwar Dass Jain (dead) through Lrs. v. Sohan Lal (dead) by LRs., AIR 2000 SC 426 and Dhirajlal Girdharilal v. Commr. Of Income-tax, Bombay, (s) AIR 1955 SC 271 (Vol. 42,C.N. 47). By placing reliance on the decision of this Court in Koushalya Bai (Smt.) and others v. Radha and another, 2005 RN 92, it has been contended by learned counsel that since the order of Tahsildar was set aside by Sub-Divisional Officer, it has lost all its sancity and therefore no reliance can be placed upon the said order. 17. By placing reliance on the decision of this Court in Koushalya Bai (Smt.) and others v. Radha and another, 2005 RN 92, it has been contended by learned counsel that since the order of Tahsildar was set aside by Sub-Divisional Officer, it has lost all its sancity and therefore no reliance can be placed upon the said order. 17. On the other hand, Shri K.S. Tomar, learned Senior Advocate for respondent No.1 argued in support of the impugned judgment and has contended that since the testimony of plaintiff-Balveer was taken into consideration by learned First Appellate Court and by scanning his evidence and other material placed on record, the learned First Appellate Court arrived at a categorical finding that defendant No.1 is possessing the suit property as occupancy tenant and further because the suit property was leased out in contravention to section 168 of the Code, the defendant No.1 firstly became occupancy tenant and thereafter by operation of law became Bhumiswami of the suit property. Learned Senior Counsel by placing reliance on the decision of Judicial Commissioner Nagpur in Sobhnasingh and others v. Khushal Gujar, AIR 1932 Nagpur 138 as well as in Mehar Chand Das v. Lal Babu Siddique and others, AIR 2007 SC 1499 , has submitted that suit as framed by the plaintiff is not maintainable because relief of possession has also not been sought by him. 18. The further contention of learned Senior counsel is that since there is pleading of defendant No.1 that on the condition of the payment of lagan (Revenue) the suit property was given by plaintiff to defendant No.1 on Shikmi basis and therefore this condition will amount to a valid consideration, and therefore, it cannot be said that the terms of the contract are not properly pleaded by the defendant No.1. Learned Senior Counsel by inviting my attention to the sale deed (Ex. P.8), which is a document of title of plaintiff has submitted that this sale deed is dated 31.3 .1979 and in this sale deed, the age of plaintiff 12 years has been mentioned, and therefore, he was a person competent to contract and to lease out the disputed property. 19. P.8), which is a document of title of plaintiff has submitted that this sale deed is dated 31.3 .1979 and in this sale deed, the age of plaintiff 12 years has been mentioned, and therefore, he was a person competent to contract and to lease out the disputed property. 19. It has also been put forth by learned Senior Counsel that even if the order of Tahsil Court which has been set aside by the Sub-Divisional Officer is ignored since the categorical finding based on other material on record has been arrived at by learned First Appellate Court holding the possession of defendant No.1 on the suit property and because this is a pure finding of fact, therefore, the suit of plaintiff is hit by section 34 of the Specific Relief Act, 1963, since the plaintiff has not sought any relief of possession. However, it has been contended by learned Senior Counsel that it appears that under some confusion learned First Appellate Court in the concluding para of the impugned judgment has directed the plaintiff to deliver possession to defendant No.1 because the same has been obtained during the appeal. Although, there is no such material on record, but the specific finding of learned First Appellate Court is that defendant No.1 is in possession of the suit property and therefore, this appeal be dismissed. 20. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law No. (1) 21. On going through section 168 (2) of the Code, this Court finds that a minor can lease out the whole or part of his holding. On bare perusal of second proviso this Court finds that any lease made in pursuance to sub-section (2) shall cease to be in force after one year of the determination of the disability by death or otherwise. Section 169 of the Code speaks about unauthorised lease etc. On bare perusal of second proviso this Court finds that any lease made in pursuance to sub-section (2) shall cease to be in force after one year of the determination of the disability by death or otherwise. Section 169 of the Code speaks about unauthorised lease etc. According to this provision, if a Bhumiswami leases out for any period any land comprised in his holding in contravention of section 168 or by an arrangement which is not a lease under sub-section (1) of section 168 allows any person to cultivate any land comprised in his holding otherwise than as his hired labour and under that arrangement such person is allowed to be in possession of such land for a period exceeding two years without being evicted in accordance with section 250, the rights of an occupancy tenant would accrue in that person. On conjoint reading of these two provisions this Court finds that the conferral of occupancy tenancy right in contravention to section 168 of the Code would not be applicable to the person who are coming in the category of sub section (2) in view of second proviso to Section 168 of the Code unless, the disability of that person is ceased by death or otherwise. The question now would arise for consideration as to whether the plaintiff was minor in Samvat 2042 or not? The learned First Appellate Court on the basis of the age of plaintiff mentioned as 12 years in the sale deed dated 31.3.1979 (Ex.P.8) has held that in Samvat 2042 (corresponding year 1984-85) he was major. The factum of taking the suit land on Shikmi basis in Samvat 2042 has been pleaded by the defendant No.1. The corresponding year of Gregorian calendar would be 1984-85, and therefore, the age of plaintiff must be between 17 to 18 years. However, on going through the document Ex.P-9C which is the mark-sheet of High School Certificate Examination conducted by Madhyamik Shiksha Mandal, M.P. Bhopal 1989, the date of birth of appellant 5.10.1969 has been mentioned in it, and therefore, in the year 1984-85 the age of appellant must be in between 15 to 16 years and he was a minor. Even if the age of the plaintiff is taken to be in between 17 to 18 years in the year 1984-85, it is not necessary that he attained the age of majority. Even if the age of the plaintiff is taken to be in between 17 to 18 years in the year 1984-85, it is not necessary that he attained the age of majority. His age may be even 17 years or less than 18 years at the time of giving the suit land to defendant No.1 on Shikmi basis. It is a matter of common parance that person, particularly village living persons do not mention the exact age in the document of sale and approximate age is being written by them and therefore according to me with certainly it cannot be said that appellant was major in Samvat 2042 when the alleged transaction of lease took place between him and the defendant No.1. According to me, the High School Certificate is having higher degree of authenticity, since, it has been issued by a statutory body created under the statue, and therefore, even if it is held that the suit property was given on Shikmi basis by appellant to the defendant, in view of section 168 (2) of the Code no right of occupancy tenant would accrue in him even if it is held that land was given in contravention to sub-section (1) of 168 of the Code. Hence, this substantial question of law No.1 is answered in favour of appellant. Regarding substantial question of law No. (2): 22. While answering the substantial question of law No.1, I have already held hereinabove that since plaintiff was minor having age in between 15 to 16 years in Samvat 2042, therefore, right of occupancy tenant and Bhumiswami would not confer in defendant No.1 and even if it is held that the land was given by plaintiff to defendant No.1 on Shikmi basis, the pleadings of the defendant in para 4 A would not make out a case for him that he became occupancy tenant and thereafter Bhumiswami. The substantial question of law No.2 is thus answered against defendant No. 11 respondent and in favour of the appellant. Regarding substantial question of law Nos. (3) and (4) : 23. The entire finding of the learned first appellate Court is based upon the evidence and the material placed before the Tahsildar passing an order in favour of defendant No.1 holding him to be an occupancy tenant and therefore Bhumiswarni on the suit property. Regarding substantial question of law Nos. (3) and (4) : 23. The entire finding of the learned first appellate Court is based upon the evidence and the material placed before the Tahsildar passing an order in favour of defendant No.1 holding him to be an occupancy tenant and therefore Bhumiswarni on the suit property. According to me, since the said order of Tehsildar has already been set aside by the Sub-Divisional Officer in appeal, the Tahsildar's order lost its all sanctity and therefore the evidence adduced in Tehsil Court by the plaintiff is of no use and cannot be used against him in this civil suit since that order has already been set aside. Learned counsel for the parties did not dispute that order of Sub-Divisional Officer has already been affirmed by the Revenue Commissioner in second appeal and the appeal which was filed by defendant No.1 has been dismissed. Therefore, according to me, the finding of possession of the learned First Appellate Court holding the alleged admissions of the plaintiff contained in the deposition recorded before the Tahsildar is wholly irrelevant. Hence, the decision of Supreme Court Ishwar Dass Jain (supra) placed reliance by the learned counsel for the appellant is applicable in the case wherein the Supreme Court has held that in such circumstances this Court while exercising jurisdiction under section 100 of CPC may set aside the finding of fact arrived at by the Court below. In this view of the matter, the decision of Supreme Court Mehar Chand Das (supra) placed reliance by the learned senior counsel for the respondent No.1 in which it has been held that if the plaintiff is not in possession of the suit property, his suit cannot be decreed in absence of seeking any relief of possession, is not applicable. The decision of Judicial Commissioner of Nagpur in Sobhasingh (supra) is also not applicable in the present case because section 168 of the Code or any other similar provision was not interpreted by the Judicial Commissioner. Thus, these substantial question of law are also decided against the defendant No.1/respondent and in favour of appellant and it is hereby held that defendant No.1 is not in possession of the suit property, while the plaintiff is holding possession on the suit property. 24. Resultantly, this appeal succeeds and is hereby allowed. Thus, these substantial question of law are also decided against the defendant No.1/respondent and in favour of appellant and it is hereby held that defendant No.1 is not in possession of the suit property, while the plaintiff is holding possession on the suit property. 24. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of reversal passed by the learned first appellate Court is hereby set aside and the judgment and decree passed by the learned Trial Court is hereby restored. The suit of the plaintiff/appellant is hereby decreed with costs throughout. The respondent No.1 shall bear the costs of appellant. Counsel fee Rs. 3,000/- if pre-certified.