WALTER LOUIS FRANKLIN (DEAD) THROUGH LRS.versusGEORGE SINGH (DEAD) THROUGH LRS.

A         WALTER LOUIS FRANKLIN (DEAD) THROUGH LRS.
                                           v.
                  GEORGE SINGH (DEAD) THROUGH LRS.

                               NOVEMBER 27, 1996

B               [K. RAMASWAMY AND G.T. NANAVATI, JJ.]

          Specific Relief Act, 1963 : Section 38.

            Suit filed by appellant restraining respondent from inteifeiing with his
C   possession and enjoymelll of land-Respondent pleaded that his predecessor
    in title had purchased the la11d and that 110 pe1petual i11ju11ction could be
    granted agai11st him, he being a tme owne1-Tlial Court a11d Appellate Court
    found that appellant was in possession and enjoyment of disputed property
    and accordingly granted perpetual injunction-High Court set aside the
D   decrees of Courts below-Appeal-Held, in the sale deed executed by the
    respondent's vendor there was a clear recita~ which bi11ds the respondent, that
    the appellant was in possession of the disputed property-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 or
    possession of the property-On the other hand, the appellant filed the suit for
E   perpetual injunction-Therefore, the tlial Court and the appellate Court have
    lightly granted the· perpetual injunction-71te High Cowt was not 1ight in
    reversing that finding.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 249 of
F 1981.
         From the Judgment and Order dated 13.11.80 of the Allahabad High
    Court in S.A. No. 1252 of 1973.

          Pramod Swarup, for the Appellants.
G
          R.D. Upadhyay and G.G. Upadhyay for the Respondents.

          The following Order of the Court was delivered :

          This appeal by special leave arises from the judgment of the learned
H single Judge of the Allahabad High Court, made in Second Appeal No.
                                          266
              WALTER LOUIS FRANKLlNv. GEORGE SINGH                        267

 1252/73 dated November 30, 1980. The appellant had filed the suit for           A
 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 the plot No.
15/45 from the Church under a sale deed in year 1937 and ever since has
been in possession and enjoyment of his property. He had enclosed the            B
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
                                                                                 c
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 gr~nted 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 per-          D
fected 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 con-
tinuous possession does not constitute adverse possession. Therefore, the
courts below are not right in finding that he was in adverse possession.         E

        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
 vender, i.e., S.W. Lawrence, there is a clear recital, which binds the          F
 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         G
·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       H
    268                   SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R.
A granted the perpetual injunction. The High Court is, therefore, not right
    in reversing that finding.

         The appeal is accordingly allowed. The judgment and decree of the
    High Court stand set aside and that of the trial Court and the appellate
    Court confirmed. No costs.
B
    T.N.A.                                                  Appeal allowed.