1. Being aggrieved by the judgment dated 8.1.2002 passed by II ADJ, Shujalpur, District- Shajapur in civil first appeal No. 9-A/2001 whereby judgment dated 27.11.1990 passed by Civil Judge, Class-II, Shujalpur in civil suit No. 54-A/1987 whereby suit filed by the appellant was decreed was set aside, present appeal has been filed.

2. The appeal was admitted by this Court vide order dated 10.4.2002 on the following substantial questions of law:

1) "Whether lower appellate court was justified in reversing decree passed by the trial Court which had decreed the suit?"

2) "Whether lower appellate Court was right in exercising powers under section 96 when it is clear from the record that it did not while reversing finding of the trial Court discuss the evidence much less in detail led by the parties?"

3)"Whether impugned judgment can be regarded as a judgment in confirmity with requirement of section 96 of CP Code?"

3. Short facts of the case are that appellant filed a suit for declaration and permanent injunction on 19.1.1982 wherein it was alleged that land bearing survey No. 446/1 measuring0.105 hectare is situated at Shujalpur. It was alleged that appellant is Bhumiswami of the land. It was alleged that in the revenue record name of Jagannath and Harisingh predecessor in title of respondent No.2 and 3 is recorded as Bhumiswami which is wrong. It was alleged that appellant entered into an agreement to purchase the suit property in the year 1962. In alternative it was also alleged that appellant is in occupation of the land since last 20 years continuously without any interruption as Bhumiswami within the knowledge of respondents. It was alleged that appellant has become owner of the suit property on the basis of adverse possession. It was prayed that it be declared that appellant is Bhumiswami of the suit land and respondents be restrained not to interfere into the possession of the appellant. The suit was contested by the respondents by filing written statement wherein all the plaint allegations were denied. It was denied that appellant is in occupation of the suit land. It was also denied that appellant entered into an agreement to purchase the suit property. It was denied that appellant is owner of the suit property on the basis of hostile title. It was prayed that suit be dismissed. After framing of issues and recording of evidence learned trial Court decreed the suit against which an appeal was filed by the respondent No. 1 to 5 while was allowed and judgment and decree passed by learned trial Court was set-aside against which present appeal has been filed.

4. Learned counsel for the appellant argued at length and submits that the impugned judgment passed by learned appellate Court is illegal, incorrect and deserves to be set-aside. It is submitted that after due appreciation evidence learned trial Court decreed the suit filed by the appellant on the basis of hostile title. It is submitted that learned appellate Court was duty bound to appreciate the evidence on record and without appreciating the evidence learned appellate Court committed error in setting-aside the judgment and decree passed by learned trial Court. It is submitted that without taking into consideration the facts and evidence on record learned appellate Court set-aside the judgment and decree passed by the learned trial Court which is not permissible under the law. It is submitted that the appeal tiled by the appellant be allowed and the impugned judgment passed by learned appellate Court be set-aside.

5. Learned counsel for the respondent No.1 to 5 submits that learned trial Court has decreed the suit filed by the appellant on the basis of hostile title. It is submitted that no relief was claimed by the appellant on the basis of hostile title and no issue was framed in that regard. It is submitted that law relating to hostile title is well settled by Hon'ble Apex Court in a decision in the matter of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan (