JUDGMENT 1. Being aggrieved by the judgment dated 22.7.1994 passed by I ADJ, Neemuch in civil appeal No. 10-A/1992 whereby the judgment dated 16.4.1992 passed by Civil Judge, Class-I, Jawad, District-Neemuch in civil suit No. 152-A/1984 whereby the suit filed by the respondent was partly decreed was further decreed in toto, the present appeal has been filed. 2. The appeal was admitted for final hearing by this Court vide order dated 12.7.1996 on the following substantial questions of law: 1) Whether the suit is barred by limitation? 2) Whether first appellate Court's finding that the lands in suit were Khudkasht in plaintiff's is perverse? 3. Short facts of the case are that the respondent filed a suit for declaration and permanent injunction on 11.1.1980 alleging that the respondent is in occupation of land bearing survey No. 396, 397, 399, 400, 404, 405, 674, 685, 687, 1087, 1089, 1152, 1158, 1160, 1184 and 1187 measuring 0.314, 0.324, 4.850, 0.899, 0.199, 2.236, 0.230, 0.499, 0.293, 2.069, 0.178, 4.680, 0.899, 439, 0.564, 4.288, 5.508 and 2.299 RA totalling 51.52 hectituated at Haryana, Jawad. It was alleged that respondent was in occupation of suit land from the time of his ancestors prior to coming into force of abolition of Jamindari Act. It was alleged that respondent is the Bhumiswami of the land. It was alleged that the land was recorded in the revenue record as Khudkasht, therefore, appellants were having no authority to declare the land as Government land. It was alleged that up to 2008 the name of respondent was recorded as Bhumiswami and in Samvad 2009 without any intimation to the respondent in the revenue record name of appellant was recorded as Bhumiswami and proceedings were initiated for taking the possession. It was alleged that it be declared that the respondent is Bhumiswami of the suit land and appellant be restrained not to interfere into the possession. 4. The suit was contested by the appellant by filing the written statement wherein plaint allegations were denied. It was denied that ancestors of respondents were in occupation of the land. It was denied that nature of land was Khudkasht. It was alleged that the land belongs to the State Government. It was alleged that nature of the land is Beed, hence not fit for cultivation. It was prayed that the suit be dismissed. It was denied that ancestors of respondents were in occupation of the land. It was denied that nature of land was Khudkasht. It was alleged that the land belongs to the State Government. It was alleged that nature of the land is Beed, hence not fit for cultivation. It was prayed that the suit be dismissed. After flaming of issues and recording of evidence, learned trial Court decreed the suit in part whereby out of 18 survey numbers respondents was declared Bhumiswami of 12 survey numbers of land against which an appeal was filed in which cross objections were filed by the respondent. After hearing the parties learned appellate Court dismissed the appeal filed by the appellants and allowed the cross-objections filed by the respondents whereby that part of judgment passed by learned trial Court whereby suit filed by the respondent was dismissed, was set -aside, hence present appeal has been filed. 5. Learned counsel for the appellant/State argued at length and submits that the impugned judgment passed by learned Courts below is illegal, incorrect and deserves to be set-aside. It is submitted that since it was Beed land, therefore, there was no justification on the part of learned Courts below to declare the respondent as Bhumiswami. It is submitted that the appeal filed by the appellant/State be allowed and the impugned judgment passed by learned Courts below be set-aside. 6. Learned counsel for the respondent submits that the impugned judgment passed by learned Courts below are based on due appreciation of evidence which requires no interference. It is submitted that finding of learned Courts below whereby the status of respondent has been declared as Bhumiswami is a concurrent finding of facts which requires no interference. It is submitted that the appeal filed by the appellant/State be dismissed. 7. From perusal of record, it appears that to prove the case respondent has filed the documents Ex. P/1 to P/14. Out of which Ex. P/1 to Ex. P/12 are the revenue record, while Ex. P/14 is the registered notice. Apart from this, the respondent/Laxmilal has examined herself as PW/1, Laxmansingh as PW/2, Kishanlal as PW/3 while appellant examined Sohansingh as DW/1, Nathulal as DW/2 and Shyamdas Biaragi as DW/3. 8. Zamindari Abolition Act (which shall be referred hereinafter as an "Act") came into force w.e.f. 25.6.51. P/12 are the revenue record, while Ex. P/14 is the registered notice. Apart from this, the respondent/Laxmilal has examined herself as PW/1, Laxmansingh as PW/2, Kishanlal as PW/3 while appellant examined Sohansingh as DW/1, Nathulal as DW/2 and Shyamdas Biaragi as DW/3. 8. Zamindari Abolition Act (which shall be referred hereinafter as an "Act") came into force w.e.f. 25.6.51. The Word 'Khudkasht' has been defined under section 2 (c) of the Act, which lays down that Khudkasht means land cultivated by the Zamindar himself or through employees or hired labourers and including sir land. Section 4 of the Act deals with the consequences of the vesting of an estate in the State. Sub-clause A of Sub-section (1) of Section 4 of the Act lays down that al1 rights, title or interest of the proprietor in such area, including land (cultivable, barren or Bir) shall cease and be vested in the State free from all encumbrances from the date of publication of the notification under section 3 of the Act. Sub-Section (2) of Section 4 of the Act lays down that the proprietor shall continue to remain in possession of his Khud-kasht land, so recorded in the annual village papers before the date of vesting. 9. In the matter of Haji Sk. Subhan v. Madhorao, AIR 1962 SC 1230 . Hon'ble Apex Court held that the only condition requisite for the proprietor having certain land treated as his home-farm was the fact that the annual papers of the relevant year which is prior to the date of vesting, recorded that land as his sir and khudkasht. It was further held that the basis was the record and not the fact of actual cultivation of his title to that land. In the matter of State of M.P. v. Nathusingh, 1982 RN 440 this Court held that in absence of actual cultivating possession of Zamindar nor recorded as Khadkasth in the revenue papers before or at the date of vesting, right of pacca tenant cannot accrue and he cannot become an occupancy tenant or a Bhumiswami. In the matter of Bhero Singh v. Government of M.P. 1983 RN 243 wherein and recorded as Khudkasht in revenue records, this Court held that merely on the basis of entry as BIR, it cannot be refused to give effect to the entry of Khudkash. In the matter of Bhero Singh v. Government of M.P. 1983 RN 243 wherein and recorded as Khudkasht in revenue records, this Court held that merely on the basis of entry as BIR, it cannot be refused to give effect to the entry of Khudkash. It was also held that the land record as Khudksht before the date of vesting cannot be treated as BIR. In this case this Court also considered the word 'Khudkasht' and 'BIR' and held that the land recorded as Khudkasht before the date of vesting merely on the basis of entry as BIR such land cannot be treated as BIR and the land will be treated as Khudkasht. In the matter of State of M.P. v. Kundan Singh, 1995 RN 57 after taking into consideration law laid down by this Court in the matter of Bherusingh (supra) this Court held that in a case where part of land of a particular Khasra number recorded as 'Khudkasht' and remaining part recorded as 'BIR' cannot be treated as Khudkasht. It was further held that such BIR land vests in the State by virtue of section 3 and cannot be allotted to the Zamindar. In the matter of Ram Babu Singh v. State of M.P. 2000 RN 117 = 2000 (1) MPLJ 14 this Court has held that essential condition for settlement of lands with the proprietors is that the land should be Khudkasht. It was further held that in case where claim not proved by ex-zamindars under the Act, the claim on the basis of their settled possession over the land and the plea that they could be dislodged only by due process of law, this Court held that State is free to initiate action against encroachers to secure possession under the provisions MPLRC. 10. In view of the aforesaid position of law this Court has to examine the revenue record. Status of suit land shown in Ex.P/1 to Ex. P/12 are as under:- Sr. Exhibit Year Samvat Status No. 1. Ex. P/1 1970-71 to 2027-2030 Beed 1973-74 2. Ex. P/2 1951-52 2011-12 Beed 3. Ex. P/3 1952 2007 Beed 4. Ex. P/4 2008 Beed 5. Ex. P/5 2009 Beed 6. Ex. P/6 2013-15 Beed 7. Ex. P/7 2016-19 Beed 8. Ex. P/8 1963-64 2020 Beed 9. Ex. P/9 1967-68 2022 Beed 10. Ex. P/10 1968-69 2025 Beed 11. Ex. P/11 1959-60 Laxmilal S/o Kashrimal 12. Ex. Ex. P/2 1951-52 2011-12 Beed 3. Ex. P/3 1952 2007 Beed 4. Ex. P/4 2008 Beed 5. Ex. P/5 2009 Beed 6. Ex. P/6 2013-15 Beed 7. Ex. P/7 2016-19 Beed 8. Ex. P/8 1963-64 2020 Beed 9. Ex. P/9 1967-68 2022 Beed 10. Ex. P/10 1968-69 2025 Beed 11. Ex. P/11 1959-60 Laxmilal S/o Kashrimal 12. Ex. P/12 1958-59 Laxmilal S/o Keshrimal 11. From perusal of the record it is evident that the suit was filed on 11.1.80 for declaration and permanent injunction. In the suit it was alleged that the name of the State was recorded as Bhumiswami after enforcement of Zamindari Abolition Act. Thus, the name of the State was recorded in the year 1951, while the suit was filed after 30 years. In the written statement specific plea was taken by the appellant/State that the suit is barred by time. Inspite of specific plea no issue was framed in that regard and without considering this aspect of the case whether the suit is in time or not, the suit was decreed. 12. After going through the provisions of law and also the law laid down by this Court it is crystal clear that the land which is recorded as BIR is not Khudkasht land and after enforcement of the notification consequence of sub-clause-(a) of Sub Section (1) of section 4 is that the land recorded as BIR vests with the State and the State is free to take appropriate steps to remove the encroachment. However, since this aspect of the case was not considered by the learned trial Court that whether the suit filed by the respondent was in time or not, therefore, case is remanded to the learned Appellate Court to decide the appeal on the question of limitation and also to decide the status of suit land in the relevant year when the Act came into force. It is made clear that even if, Appellate Court is of the view that the suit filed by the respondent is barred by time, then too, the learned Appellate Court shall also decided the rights of the respondent keeping in view the documentary evidence adduced by the respondent for the relevant year in view of the law as stated hereinabove. 13. With the aforesaid observations, appeal stands disposed of. Parties are directed to remain present before the learned Appellate Court on 13.9.2010. 13. With the aforesaid observations, appeal stands disposed of. Parties are directed to remain present before the learned Appellate Court on 13.9.2010. Learned Appellate Court is directed to re-decide the appeal on merits within a period of six months.