The main legal point established is the need to consider the appellant's entitlement to protect his possession on the basis of hostile title, in accordance with the M.P. Land Revenue Code, 1959 and the Indian Limitation Act, 1963.

(Passed on this 9 th day of July, 2011) Being aggrieved by the judgment dated 27.7.2010 passed by 6th Addl.District Judge, Indore in Civil Appeal No.1/2010, whereby the judgment dated 22.1.2010 passed by 2nd Addl.Civil Judge Class II, Indore in Civil Suit No.40-A/2008, whereby suit filed by the appellant was dismissed and the counter claim filed by respondents No.4 to 6 was decreed, was maintained, present appeal has been filed.

2. The appeal was admitted for final hearing by this Court on the following substantial questions of law:-

“1) Whether in the facts and circumstances of the case learned appellate Court was justified in not taking into consideration the application filed by the appellant under Order 41 Rule 27 CPC ? 2) Whether in the facts and circumstances of the case learned appellate Court was justified in making out a different case, which was not a case set up by the respondents in their pleadings ?

3. Short facts of the case are that appellant filed a suit on 15.2.2007 for declaration and permanent injunction alleging that appellant is resident of village Bijalpur, Tehsil and District Indore and is an agriculturist. It was alleged that respondents No.1 to 6 are the members of one family and are also resident of village Bijalpur. It was alleged that predecessor-in-title of respondents No.1 to 6 was Mangalji, who was having two sons Mukund and Atmaram. It was alleged that Mukund was having three sons Kanhaiyalal, Girdhari and Ramratan. It was alleged that Kanhaiyalal is respondent No.1 and rest of the respondents are the LRs of Girdhari and Ramratan. Further case of the appellant was that respondents No.1 to 6 are having their separate land at village Bijalpur. It was alleged that partition took place in the family of respondents No1 to 6 before 35 years. It was alleged that land bearing survey No.1023 measuring 0.628 hectares came into the share of Kanhaiyalal S/o Atmaram respondent no.1, which is the suit land. It was alleged that suit land was sold by respondent No.1 to the appellant in the year 1976 for a consideration of Rs.11,000/-. It was alleged that after receipt of the consideration possession of the suit land was given to the appellant for which no sale deed was executed in favour of the appellant. It was alleged that since then appellant is in occupation of the suit land. Further case of the appellant was that appellant is a poor illiterate person. Appellant repeatedly requested respondent No.1 to execute the sale deed but respondent No.1 avoided for one reason or another. After lapse of one year respondent No.1 informed the appellant to take back the consideration and handover the possession for which the appellant did not agree. It was alleged that since then appellant is in occupation of suit land peacefully, uninterruptedly within the knowledge of respondent No.1, thus, the possession of the appellant is hostile as against respondent No.1. It was alleged that in the revenue record name of respondent No.1 is recorded alongwith LRs of Ramratan and Girdhari who are respondents No.2 to 6. It was alleged that since the partition has taken place before 35 years, therefore, rest of the respondents are having no right title, interest in the suit property. It was alleged that in the year 2007 when the respondent No.1 tried to alienate the property, taking advantage of the fact that his name was recorded as Bhumiswami, cause of action accrued to the appellant. It was prayed that suit filed by the appellant be decreed and decree of declaration be passed in favour of appellant to the effect that appellant is Bhumiswami of the suit land on the basis of hostile title and the rights of respondent No.1 has extinguished and also the appellant is entitled to get his name mutated in the revenue record. Injunction was also prayed to the effect that respondent No.1 be restrained not to interfere into the possession of the appellant.

4. The suit was contested by the respondent No.1 by filing written statement, wher