- (1.)THIS second appeal is filed against the judgment and decree in Civil Appeal No. 29/80 -A (35 A of 1981) by the learned ADJ to the District Judge Dewas dated 4.9.1982 allowing the appeal of the respondents and dismissing the suit.
(2.)THE short facts giving rise to this appeal are that in Village Chapada, agricultural land bearing Survey No. 495 is situated in the names of Babulal and others. The area of this survey number is 5.30 acres, out of which plaintiff was in possession of 1.075 hectares on the northern side for the last 10 years as a sub -tenant. The plaintiff also has filed an application in Tehsil Bagli for entering his name on that portion of land. It was pending on the date of suit. On 10.7.1977, the defendants ousted plaintiff from this land for which they have no right.
Babulal and other Bhumiswami have also sold the piece of land to defendants No. 4 to 8 which also is bad in law and not binding on the plaintiffs. The respondents resisted the suit contending that the land is purchased by them from Babulal, the Bhumiswami on 4.5.1977 alongwith other lands. They got its possession and that the plaintiff is not in possession of the lands claimed. The description of the land also is not correctly mentioned. That in execution case No. 31/68, the plaintiff got this land attached which shows that the plaintiff was not in possession or not the occupancy tenant. The trial Court allowed the plea and decreed the suit, however, the appellate Court found it as a matter of fact that the defendant/respondents have not dispossessed the plaintiff. He had made over or left the land on measurement of survey No. 495 voluntarily, therefore, the suit deserves to be dismissed. The learned appellate Judge held that the trial Court had not properly appreciated the evidence in its true perspective. The appellant had failed to prove the terms of the lease as also the legality or lawfulness of the tenancy. Considering the evidence, the appellate Court held that the appellant had not taken any steps to take his name mutated which shows that the plaintiff was never an occupancy tenant of the land.

(3.)THE aforesaid being the question of pure and simple facts which emanates from the evidence led, I do not see any substantial question much less the one raised in the order sheet arises. The appellate Court was absolutely justified in allowing the appeal on finding of facts as it has reached the holding that the plaintiff has failed to prove that he is an occupancy tenant and holding that infact the land in excess of the entitlement was left voluntarily by the appellant. I do not see any reason to interfere with the appellate judgment, therefore, dismissed this appeal with costs. Advocate s fee as may be proved.