WALTER LOUIS FRANKLIN (DEAD) THROUGH LRS. versus GEORGE SINGH (DEAD) THROUGH LRS.

Citation: [1996] SUPP. 9 S.C.R. 266 · Decided: 27-11-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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 
E 
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 
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. 
G 
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. 
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 
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 gr~nted against him, he being a true owner. Both the trial Court and 
B 
c 
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 appella

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