JUDGMENT 1. The instant appeal is directed against the reversing judgment of the first appellate Court dated 8/5/2001passed by Additional District Judge, Gohad, District Bhind in Civil Appeal No. 14/2000 setting aside the judgment and decree dated 30/6/2000 passed by Civil Judge, Class-II, Gohad in Civil Suit No. 166-A/1998. 2. This Court vide order dated 26/04/2008 had admitted the appeal on the following substantial questions of law:- “(1) Whether the land kept reserved for Sarvaganik Nistar or Charnoi Abadi land and whether this land can be converted for residential use ? (2) Whether the first appellate Court has wrongly comes to the conclusion that the plaintiff has no any right upon the open land to enjoy it ?” 3. Necessary facts relevant for decision of this appeal as per plaint allegations are that a suit for declaration and permanent injunction was filed alleging that plaintiff has a residential house in village Khuman Ka Pura, Gurikha, Mazra, Tahsil Gohad, District Bhind. Entrance door of the house is on the western side and the adjoining area thereto was an open land which is a public land. A Hanuman temple is also situated in the vicinity of the area where people used to visit and worshiped. The open land was used as an access land. As per Khasra entries, open land of survey No. 2257 is a Charnoi land. Since the defendants have no right or title to the open land and were never in possession of the land, forcefully they intended to raise a construction thereon. On 19/6/1995, defendants threatened the plaintiff to close the door and that led the plaintiff to file of the civil suit for permanent injunction and to restrain the defendants not to interfere and obstruct the plaintiff’s easementary right to enjoy the open land where the entrance door opened. Defendants denied plaint allegations and averred that there was a boundary wall between the house of the plaintiff and the defendants premises. Defendants also disputed the fact that the open land is a public land. Instead, claimed it to be of their ownership. Thereafter, they questioned the right of the plaintiff to have access to open land for entrance in the house and suggested that the plaintiff can enter from the side lane opening in the southern side. The defendants further pleaded that they have converted the agricultural suit land into the Abadi land. 4. Instead, claimed it to be of their ownership. Thereafter, they questioned the right of the plaintiff to have access to open land for entrance in the house and suggested that the plaintiff can enter from the side lane opening in the southern side. The defendants further pleaded that they have converted the agricultural suit land into the Abadi land. 4. The trial Court framed as many as four issues as follow:- okn iz’u fu”d”kZ 1& D;k okfn;k vius edku ds lkeus if’pe dh vksj fLFkr \ fl) lkoZtfud Hkwfe dks miHkksx mi;ksx djus dh vf/kdkfj.kh gS\ 2& D;k okfn;k dks vius edku ls fudyus dk lq[kkf/kdkj izkIr gS \ gk¡ 3& D;k okfn;k }kjk mfpr U;k; ‘kqYd vnk fd;k gS \ fl) ugha 4& lgk;rk ,oa okn O;; \ pj.k 19 vuqlkj 5. The trial Court recorded the finding that the open land is a Government land. Suit was decreed with a direction that the defendant shall remove the boundary wall raised on the government land and shall not create any obstruction and hindrance on the plaintiff’s easementary right upon the open land. 6. Learned counsel for the appellant has pointed out that the first appellate Court has committed grave error of law and fact while reversing the judgment and decree of the trial Court. Learned counsel submitted that the first appellate Court has not at all considered the evidence led by the plaintiffs PW/1 to PW/3 in right perspective and reversed the findings of the trial Court. Learned counsel referred to paras 14 and 15 of the judgment of first appellate Court and submitted that first appellate Court ignored the findings recorded by the trial Court that the open land is a Government land and justified the construction of boundary walls raised by the defendants. It is further submitted that plaintiff’s easementary rights of way and light on the western side of this house was also negated by the first appellate Court on the ground that though the house was constructed in the year 1989 but the suit was filed in the year 1995, hence, no such right can be claimed by the petitioner without any basis. The first appellate Court discarded the findings on record and recorded a convenient finding that there was no right of way available to the plaintiff on the western side. 7. Heard learned counsel. 8. The first appellate Court discarded the findings on record and recorded a convenient finding that there was no right of way available to the plaintiff on the western side. 7. Heard learned counsel. 8. In para 17 of its judgment, learned trial Court recorded a finding based on Ex. P/1 to P/9 that after division of Khasra No. 2257, open land falling in Khasara No. 2257/1 is a Nistar Charnoi land and Khasara No. 2257/2 is a Abadi land. None of these lands have been allotted to the defendants. The construction of the boundary wall raised over the said Government land by defendant is nothing but an encroachment and due to this construction, inconvenience has been caused to the plaintiff to have access to his house on the western side. Thus, the trial Court recorded the findings while holding the suit land as Government Charnoi and Abadi land, that the defendants have encroached upon such land and have raised illegal construction of boundary wall. The defendants have no right to raise such construction firstly because the construction of boundary wall has been raised over the Government land and; secondly they have obstructed the right of way of the plaintiffs. 9. Section 237 of the M.P. Land Revenue Code, 1959 (for short “MPLRC”) provides that the Collector may set apart unoccupied land for the purposes mentioned therein in accordance with rules made under the MPLRC on terms and conditions as provided for. section 237 of the MPLRC reads as under:- “237. Collector to set apart land for exercise of Nistar rights. (1) Subject to the rules made under this Code, the Collector may set apart unoccupied land for the following purposes, namely,- (a) for timber or fuel reserve; (b) for pasture, grass bir or fodder reserve; (c) for burial ground and cremation grounds; (d) for gaothan; (e) for encamping ground; (f) for threshing floor; (g) for bazar; (h) for skinning ground; (I) for manure pits; (j) for public purposes such as schools, play grounds, parks, road, lanes, drains and the like; and (k) for any other purposes which may be prescribed for the exercise of right of Nistar. (2) Lands set apart specially for any purpose mentioned in sub-section (1), shall not otherwise be diverted without the sanction of the Collector. (2) Lands set apart specially for any purpose mentioned in sub-section (1), shall not otherwise be diverted without the sanction of the Collector. (3) Subject to the rules made under this Code, the Collector may divert such unoccupied land, which is set apart for the purposes mentioned in clause (b) of sub-section (1) Subject to secure minimum (two) percent of the agricultural land of that village for the said purposes in the abadi or for agricultural purposes.” 10. Admittedly there is no order of the Collector for setting apart the suit land for any purposes mentioned in section 237 of the MPLRC. The procedure is prescribed under the rules as held in the case of Harikishan and others v. State of M.P. and others, 2007 (2) MPHT 98 (DB). 11. Looking to the entirety of the facts, the suit land is open land and is a Government land of khasra No. 2257 and there is no order of the Collector to set apart this land for any purposes as mentioned therein. Encroachment of defendants over the suit land and construction of wall is certainly illegal act as has rightly been found by the trial Court, hence, the said illegal act cannot be accepted. That apart, plaintiff has right to access of entrance to his house through western side using the open land and that cannot be obstructed merely because the plaintiff has another access towards the southern side, as justified by the first appellate Court. 12. Learned first appellate Court altogether ignored these findings of trial Court. As such the substantial question of law No. 1 is answered in affirmative that the suit land is a public Nistar land and Abadi land and cannot be converted for personal use by defendants. 13. As regard, the second substantial question of law, the same is also answered in affirmative that the appellate Court wrongly concluded that the plaintiff has no right upon the open land to have an access to his house in the western side. Once, it is held that no construction was permissible on the suit land being a public Nistar and Abadi land and construction of boundary wall tantamounts to encroachment and illegal construction by defendants, the plaintiff’s easementary rights of way through open public land cannot be questions. Once, it is held that no construction was permissible on the suit land being a public Nistar and Abadi land and construction of boundary wall tantamounts to encroachment and illegal construction by defendants, the plaintiff’s easementary rights of way through open public land cannot be questions. Accordingly, the judgment of first appellate Court is set aside and the judgment and decree that of learned trial Court is restored. 14. Appeal allowed. No order as to costs.