Walter Louis Franklin (Dead) through Lrs. Vs. Feorge Singh (Dead) through Lrs.
EmailAppeal: Civil Appeal No.249 of 1981
(From the Judgment and Order dated 13.11.1980 of the Allahabad High Court in S.A.No. 1252 of 1973)
(From the Judgment and Order dated 13.11.1980 of the Allahabad High Court in S.A.No. 1252 of 1973)
Petitioner: Walter Louis Franklin (Dead) through Lrs.
Respondent: Feorge Singh (Dead) through Lrs.
Apeal: Civil Appeal No.249 of 1981
(From the Judgment and Order dated 13.11.1980 of the Allahabad High Court in S.A.No. 1252 of 1973)
(From the Judgment and Order dated 13.11.1980 of the Allahabad High Court in S.A.No. 1252 of 1973)
Judges: K.RAMASWAMY & G.T.NANAVATI, JJ.
Date of Judgment: Nov 27, 1996
Head Note:
PERPETUAL INJUNCTION
Suit for – Concurrent finding by Courts below that appellant had been in possession of the house and in enjoyment – Held not necessary to consider the question of adverse possession where plea was only for perpetual injunction on the basis of continuous possession and enjoyment and its purchase from the church – High Court was not right in reversing the findings of Courts below about admissions in title deed and possession – Appeal allowed.
Suit for – Concurrent finding by Courts below that appellant had been in possession of the house and in enjoyment – Held not necessary to consider the question of adverse possession where plea was only for perpetual injunction on the basis of continuous possession and enjoyment and its purchase from the church – High Court was not right in reversing the findings of Courts below about admissions in title deed and possession – Appeal allowed.
Held:
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 a vender, i.e., S.W. Lawrence clear recital, which is an admission, binds the respond-ent, that the appellant was in possession of the disputed prop-erty. Though he had purchased it from the Church, he could not take its possession from the appellant. It was specifi-cally 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. (Para 2)
JUDGEMENT:
O R D E R
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.1252/73 dated November 30, 1980. The appellant had filed the suit for perpetual injunction to restrain the respond-ent 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 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 posses-sion 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 posses-sion.
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 a vender, i.e., S.W. Lawrence clear recital, which is an admission, 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 perpetu-al 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 stand set aside and that of the trial Court and the appellate Court confirmed. No costs.
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.1252/73 dated November 30, 1980. The appellant had filed the suit for perpetual injunction to restrain the respond-ent 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 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 posses-sion 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 posses-sion.
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 a vender, i.e., S.W. Lawrence clear recital, which is an admission, 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 perpetu-al 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 stand set aside and that of the trial Court and the appellate Court confirmed. No costs.
