WALTER LOUIS FRANKLIN DEAD Vs. GEORGE SINGH DEAD

JUDGEMENT

(1.) This appeal by special leave arises from the judgment of the learned Single Judge of the Allahabad High court, made in Second Appeal No. 1252 of 1973 dated 30/11/1980. The appellant had filed the suit for perpetual injunction to restrain the respondent from interfering with his possession and enjoyment of 10 feet/65 feet land towards east of his house No. 15/45 situated in Kanpur. According to him, he purchased Plot No. 15/45 from thechurch under a sale deed in the year 1937 and ever since has been in possession and enjoyment of his property. He had enclosed the disputed property by putting up a wall using it for poultry farming and during summer for sleep in the open area. It is also his case that he had paid najrana to the Church and became its owner. The plea of payment of najrana and of becoming owner was given up. The respondent has pleaded that the respondent's predecessor in title by name S. W. Lawrence had purchased Plot No. 15/44 from the Church in 1965, and as owner of the property, was in enjoyment of the property. He later on claimed to have purchased Plot No. 15/43. He contended that no perpetual injunction could be granted against him, he being a true owner. Both the trial court and the appellate court found that the appellant was in possession of the disputed property and in enjoyment thereof; they also held that he perfected title by prescription. The High court has set aside the judgments and decrees of the courts below on the finding that the appellant had not proved his adverse possession as against the respondent. Mere continuous possession does not constitute adverse possession. Therefore, the courts below are not right in finding that he was in adverse possession.

(2.) It is not necessary to go into that question of adverse possession for the reason that the suit itself was for perpetual injunction. It is also an admitted position that in the sale deed executed by the respondent's vendor, i. e. , S. W. Lawrence, there is a clear recital which binds the respondent, that the appellant was in possession of the disputed property. Though he had purchased it from the Church, he could not take its possession from the appellant. It was specifically stated that it would be open to the respondent to obtain possession from the appellant, if he could. Admittedly, the respondent had not filed any suit for possession of the property. On the other hand, the appellant filed the suit for perpetual injunction to restrain the respondent from interfering with his possession of the property. In view of the admission in the title deed obtained by the respondent himself and a concurrent finding recorded by the courts below that the appellant has been in possession, the injunction shall follow. Under these circumstances, the trial court and the appellate court have rightly granted the perpetual injunction. The High court is, therefore, not right in reversing that finding,

(3.) The appeal is accordingly allowed. The judgment and decree of the High court stands set aside and that of the trial court and the appellate court confirmed. No costs.