ORDER 1. This is plaintiff’s second appeal who has lost from the two Courts below. 2. The facts necessary for the disposal of appeal lie in narrow compass. The plaintiff has come forward with a case that he is the Bhoomiswami of the Survey No. 794/2 having area of 2.842 hectare. The first defendant Gulab Singh is asserting that plaintiff has encroached upon the “Kakad” land which is of Government. According to the plaintiff the entire survey No. 794/2 belongs to him and in this survey number land of “Kakad” is not written. An alternative plea has also been set up by the plaintiff that in case it is found that the plaintiff is also possessing “Kakad” land but since he is possessing it continuously for a consideration long period without any interruption he has acquired Bhoomiswami right on that land. It has been pleaded by the plaintiff that the defendant No. 1 submitted an application in the Court of Tehsil stating that the plaintiff has illegally possessing the “Kakad” land and upon such application the measurement etc was also made and Panchnama was also prepared but it had nothing to do with the plaintiff’s ownership because Survey No. 794/2 which is owned by the plaintiff, the “Kakad” land is not included in that survey number. Hence, it has been prayed by the plaintiff that the suit be decreed and it be declared that the land in between Survey No. 794/2 and Survey No.95/1 situated in village Khategaon is not “Kakad” Government land but that land is of plaintiff. A decree of injunction be also granted against the defendants that they shall not interfere into the possession of the plaintiffs in respect of the suit property. 3. The first defendant (respondent) filed written statement and denied the plaint averments. Although in para 1 of the written statement he has admitted that Survey No. 794/2 is of plaintiff. The further plea of defendants is that by including the “Kakad” land in survey No. 794/2 the plaintiff is demonstrating that he is the Bhoomiswami of the suit land. The further stand of the first defendant is that on the application submitted by him proceedings were initiated in the Tehsil Court against the plaintiff and it was held that the disputed land is “Kakad” and Government land of village Mudiyakheda. Hence it has been prayed that the suit be dismissed. 4. The further stand of the first defendant is that on the application submitted by him proceedings were initiated in the Tehsil Court against the plaintiff and it was held that the disputed land is “Kakad” and Government land of village Mudiyakheda. Hence it has been prayed that the suit be dismissed. 4. Although the State of M.P. respondent No. 2 was arrayed as defendant No. 2 and the relief has also been sought against it, no written statement was filed by the State Government. The defendant No. 2 was also proceeded ex-parte. 5. The learned trial Court framed necessary issues and after recording the evidence of the parties dismissed the suit. The first appeal which was filed by the plaintiff has also been dismissed by the impugned judgment and decree. 6. In this manner this second appeal has been filed by the plaintiff which was admitted by this Court on 16.7.1999 on the following substantial questions of law :- “1. Whether in the absence of the original village maps or its certified copies the trial would come to the conclusion of survey No. 794/2 that it happens to be a “Kakad” land of village Mujiakheda? 2. Whether the findings recorded by the trial Court are inconsistent with the provisions of law? 3. Whether the impugned judgment and decree passed by the Court below happened to be perverse and illegal?” 7. Shri Bhagwan Singh, learned counsel for the appellant submitted that the specific case of the plaintiff is that entire Survey No. 794/2 belongs to him and he is also possessing the same. Survey No. 95/1 which is of the Bheekaram is adjoining to Survey No. 794/2/. According to him, there is no “Kakad” land of village Mudiyakheda in between these two survey numbers and learned two Courts below contrary to the documentary evidence have arrived at a conclusion that plaintiff has encroached upon the Government “Kakad” land by including it in the Survey No. 794/2 which is of plaintiff. Learned counsel submits that the plaintiff is the Bhoomiswami of the entire Survey No. 794/2 and which has been admitted by the first defendant in the written statement. Not only this the plaintiff has also filed copy of the Khasra Ex. Learned counsel submits that the plaintiff is the Bhoomiswami of the entire Survey No. 794/2 and which has been admitted by the first defendant in the written statement. Not only this the plaintiff has also filed copy of the Khasra Ex. P/3 showing that he is the Bhoomiswami of Survey No. 794/2 having area 2.482 hectare and no where it is mentioned that in this survey number any “Kakad” land is in existence. Hence when the plaintiff has proved that he is the Bhoomiswami of the survey no. 794/2 the burden shifts upon the first defendant to prove that the disputed land is a Government “Kakad” land and by not filing the relevant revenue record of the Government in that regard in order to establish that the disputed land is “Kakad”, it cannot be said that the plaintiff is illegally possessing the Government Kakad land by saying that it is the part of Survey No. 794/2. Hence, it has been prayed by learned counsel that by setting aside the impugned judgment and decree passed by the two Courts below the suit of the plaintiff be decreed. 8. On the other hand, Shri Ashish Gupta, learned counsel appearing for the first defendant (respondent No. 1) argued in support of the impugned judgment and decree and submitted that according to the plaintiff’s own showing there is an order against him by the Revenue Court, holding that he is possessing the Kakad land and, therefore, the case of plaintiff stands nowhere. Further it has been putforth by him that the plaintiff has also come forward with a case that he has perfected his Bhoomiswami right of the Government Kakad land by adverse possession which has not been proved and, therefore, by taking a somersault, the judgment passed by the two Courts below cannot be set aside by decreeing the suit. 9. Learned counsel for the respondents today has filed an application under Order 41 Rule 27 of the Code of Civil Procedure (I.A.No. 5850/11), a copy of which has been delivered to the learned counsel for the appellant. 9. Learned counsel for the respondents today has filed an application under Order 41 Rule 27 of the Code of Civil Procedure (I.A.No. 5850/11), a copy of which has been delivered to the learned counsel for the appellant. Along with the application certified copies of the report of Tehsildar Khategaon dated 5.6.1989, certified copy of the application under section 248 of the M.P. Land Revenue Code, 1959 (in short the Code) filed by Gulab Singh in the Court of Tehsil, Khategaon, order sheet of Tehsil dated 14.9.1989, Panchnama prepared in respect to trespass in the said proceedings under section 248 of the Code dated 24.5.89, the report of revenut inspector addressed to Tehsildar dated 25.5.1989 in the said proceedings, another Panchanama dated 24.5.1989 in the same proceedings, copy of AKS, copy of filed book, order-sheet dated 8.8.1990 by the Tehsildar are filed. 10. By inviting my attention to these documents it has been submitted by the learned counsel for the respondents that in the proceedings under section 248 of the Code it was decided against the plaintiff-appellant that he is illegally possessing the “Kakad” land. It be seen that the certified copies of the documents which the respondent No. 1 has filed today, the Panchanama dated 24.5.1989 and the application under section 248 of the Code are already on record Ex. P/1 and P/2. The ground to allow this application is that these documents shall be necessary for the correct decision of the case, hence it has been contended by learned counsel for the respondent No. 1 that this appeal be allowed. 11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed and the case is required to be sent back to the learned trial Court. Regarding substantial question of law No. 1. 12. On bare perusal of plaint in Para 1 this Court finds that there is specific pleadings of plaintiff that land Survey No. 794/2 having area 2.842 hectare of village Khategaon, Dewas has been recorded in the name of plaintiff in the revenue record. These averments of the plaintiff are admitted by the defendant (respondent No. 1). In this regard para one of his written statement can be seen. Thus, it not in dispute that Survey No. 794/2 area 2.842 hectare of village Khategaon is recorded in the name of plaintiff. These averments of the plaintiff are admitted by the defendant (respondent No. 1). In this regard para one of his written statement can be seen. Thus, it not in dispute that Survey No. 794/2 area 2.842 hectare of village Khategaon is recorded in the name of plaintiff. Apart from this the plaintiff has also filed Ex. P/4 which is a copy of Khasra Panchshala of year 1988-89 of village Khategoan showing him to be a Bhoomiswami of this survey number. Hence I am not having any doubt in holding that plaintiff is a Bhoomiswami of Survey No. 794/2 having area 2.842 hectare. Once it is not disputed and it is also proved that plaintiff is the Bhoomiswami of survey No. 794/2, it is for the defendant to prove that the disputed property is Government Kakad land and the plaintiff is claiming it to be the part of Survey No. 794/2. Not even a single document has been filed before the trial Court in this regard by the defendants in order to discharge the burden which was shifted on his shoulder after the plaintiff has discharged his burden by proving that he is the Bhoomiswami of Survey No. 794/2. 13. The substantial question of law is thus answered that in the absence of original village map or its certified copies two Courts below could not come to a conclusion that Survey No. 794/2 is “Kakad” land of village Mudiyakheda. Regarding substantial question of law No. 2. 14. The question now would rest on the pivot whether the strip of land which is being said to be a Government Kakad land is separate from Survey No. 794/2 or not and further whether the plaintiff is a trespasser on the said disputed land by saying it to be the part of Survey No. 794/2. To me without appointing a Commissioner in this regard it is very difficult to ascertain whether it is part of Survey No. 794/2 or excluding to it. Unfortunately, this exercise should have been done by the learned trial Court in order to pass an effective judgment determining the right of the parties. However, merely because the exercise was not done by the learned trial Court or even by the First Appellate Court this Court can exercise such powers in view of powers conferred under section 107 of the Code of Civil Procedure. However, merely because the exercise was not done by the learned trial Court or even by the First Appellate Court this Court can exercise such powers in view of powers conferred under section 107 of the Code of Civil Procedure. Hence, by exercising the powers conferred to this Court under this provision, this Court hereby direct the learned trial Court to appoint a Commissioner not below the rank of Tehsildar who shall inspect the Survey No. 794/2 in order to ascertain whether the suit property which is being said to be a Government “Kakad” land is outside the purview of Survey No. 794/2 having area 2.482 Hectare and whether Survey No. 794/2 is adjacent on the western side of Survey No. 95/1 which is said to be of Bheekam and in between these two survey numbers, whether there is any Government “Kakad” land or not. 15. I do not find any merit in the contention of Shri Gupta, learned counsel for the respondents that in the proceedings under section 248 of the Code, this exercise was already done and the Panchanama Ex. P/1 prepared under those proceedings and the application under section 248 of the Code Ex. P/1 and Ex. P/2 respectively are already on record and further today in the Court the entire proceedings of the case of 248 has been filed. Merely because some demarcation is taken place in the revenue proceedings it cannot debar the civil Court to decide whether disputed land is Government “Kakad” land or is a part of Survey No. 794/2. In this context Division Bench of Supreme Court in Haryana Waqf Board v. Shanti Sarup and others 2009 (1) MPWN 9 may be seen. Yet there is another recent decision of this Court Kamal Singh v. Roop Singh 2011 RN 307 = 2011 Vol. 13 MPLJ 333 and in this decision the learned Single Bench has placed reliance on a decision of the Supreme Court Shreepat v. Rajendra Prasad and ors. 2000 (6) Supreme 389 and also a Division Bench of this Court Durga Prasad v. Parveen Foujdar and others, 1975 MPLJ 801 = 1975 JLJ 440. 16. The substantial question of law No. 2 is thus answered that the finding recorded by the learned trial Court is contrary to law. Regarding substantial question of law No. 3. 17. 2000 (6) Supreme 389 and also a Division Bench of this Court Durga Prasad v. Parveen Foujdar and others, 1975 MPLJ 801 = 1975 JLJ 440. 16. The substantial question of law No. 2 is thus answered that the finding recorded by the learned trial Court is contrary to law. Regarding substantial question of law No. 3. 17. Since by answering substantial questions of law No. 1 and 2 the case is being sent back to the learned trial Court, this substantial question of law is not being answered. 18. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by the two Courts below is hereby set aside and the case is sent back to learned trial Court with a direction that he shall appoint a Revenue Officer not below the rank of Tehsildar who shall inspect Survey No. 794/2 and the land Survey No. 95/1 which is stituated on the western side of Survey No. 794/2 and to give a report whether in between these two survey numbers there is any Government “Kakad” land or not. The Commissioner shall further give a report whether the disputed strip which is being said to be a Government “Kakad” land by the defendant is part of Survey No. 794/2 or not. The Commissioner shall also give the report whether the plaintiff has encroached upon any alleged Government “Kakad” land saying it to be part of Survey No. 794/2 area 2.842 hectare. 19. The Commissioner is further directed to inspect the land in the presence of both the parties after giving notice to them. However, it is made clear that in case any of the parties remain absent despite having received the notice, the Commissioner shall be free to inspect the spot in the absence of that party. The learned trial Court is further directed that on the receipt of the report, if any objection is filed by any of the parties the same may be taken and if any paryer is made to cross-examination the Court Commissioner that said prayer may be allowed by providing other party also to cross-examine. 20. The parties are hereby directed to appear before the trial Court on 28.11.2011 and for this date no separate notice shall be issued to any of the parties. On 28.11.2011 the learned trial Court shall appoint Commissioner to inspect the spot. 21. 20. The parties are hereby directed to appear before the trial Court on 28.11.2011 and for this date no separate notice shall be issued to any of the parties. On 28.11.2011 the learned trial Court shall appoint Commissioner to inspect the spot. 21. Since the case is being remanded back to the trial Court, I.A.No. 5850/11 which is an application under Order 41 Rule 27 of the Code of Criminal Procedure filed by the respondent No. 1 is allowed and the certified copies of documents are taken on record. The plaintiff-appellant shall be free to file documents in the trial Court in rebuttal. The learned trial Court if finds it necessary may record the evidence of the parties. 22. The Registry is hereby directed to send the certified copy of the documents which are filed today along with an application I.A.No. 5850/11 under Order 41 Rule 27 of the CPC to the learned trial Court and shall retain the photocopy for the purpose of the record of this Court. The Registry is further directed to send the record to the learned trial Court post-haste so as to reach that Court earlier to 28.11.2011. 23. Resultantly, this appeal succeeds and is hereby allowed to the extent indicated above with no orders as to cost.