A. K. MITRA, J. ( 1 ) - This Second appeal has been preferred challenging the judgment and decree dated 4. 4. 1975 passed by the learned Additional District Judge, 4th Court at Alipore in Title Appeal No. 1050 of 1971 affirming the judgment and decree dated 14. 10. 1974 passed by the learned Munsif, 1st Court, Alipore in Title Suit No. 35 of 1975. ( 2 ) THIS appeal originates from suit for injunction. The case as has been made out by the plaintiff is that the plaintiff is the owner of. 03 acres of land and the structure thereon which is the suit property. According to the plaintiff, one Nachu Dhali was the owner and he wanted to settle the suit property in tenancy right to Baroda Adhikari who was a neighbour of the said Nachu Dhali. Adhikari took settlement of the same at a rental of Rs. 6. 00 per annum and on payment of a premium of Rs. 15. 00. The condition was that said Shri Adhikari would pay Rs. 5. 00 to the landlord of said Nachu Dhali and Re. 1. 00 only to Nachu Dhali. The said Baroda Adhikari was solely responsible for making payment of rent to the landlord of Nachu Dhali. Adhikari possessed the same till 1337 B. S. erecting house thereon. About 10 to 11 years back the defendant No. 2 Shri Subal Chandra Adhikari tried to dispossess forcibly but failed. The defendant No. 2 then filed a criminal case on the plea that the suit property has been purchased by the defendant No. 2 in the name of defendant No. 1. Ultimately the defendant No. 2 lost the criminal case. Thereafter the defendant No. 2 filed Title Suit No. 230 of 1963 but the same was dismissed. The defendant No. 2 then preferred an appeal but the said appeal was also dismissed on 17. 2. 1967. In the plaint the plaintiff averred that in 1374 B. S. i. e. on 13. 11. 1967 Baroda Adhikary sold it to Naren Ghosh. Naren Ghosh then sold it to the plaintiff by registered Deed of sale on 6. 12. 1972 and since then the plaintiff is in possession. Defendants are disturbing the possession of the plaintiff and hence this suit. ( 3 ) THE defendants contested the suit by filing Written Statement. 11. 1967 Baroda Adhikary sold it to Naren Ghosh. Naren Ghosh then sold it to the plaintiff by registered Deed of sale on 6. 12. 1972 and since then the plaintiff is in possession. Defendants are disturbing the possession of the plaintiff and hence this suit. ( 3 ) THE defendants contested the suit by filing Written Statement. In the written statement the defendants took a stand that the suit is barred by limitation and it is also barred by section 34 of this SPECIFIC RELIEF ACT, 1963. The defendants also stated that the defendant No. 2 purchased a property from Nachu Dhali by a Registered Deed of Conveyance on 20. 12. 1962 and since then they are in possession. According to the defendants, the transaction between Baroda Adhikary and Naren Ghosh was a sham transaction and in fact, no consideration passed. The defendant No. 2 also averred that he is paying rent to the Government and payment has already been made upto 1379 B. S. Defendants also claimed that the said Nachu Dhali recorded his name in the District Settlement Record of Right as well as Revisional Settlement Record of Right. ( 4 ) ON the above pleadings, the learned trial Judge framed the following Issues:1. Is the suit maintained in its present form? 2. Is the suit barred by limitation? 3. Is the suit barred under section 34 of the SPECIFIC RELIEF ACT, 1963? 4. Is the plaintiff entitled to get a decree for injunction as prayed for ( 5 ) TO what relief, if any, is the plaintiff entitled?5. The learned trial Judge after hearing the parties decreed the suit on contest without costs and restrained the defendants by an order of perpetual injunction from disturbing the possession of the plaintiff. ( 6 ) THE learned Munsif basically relied on Exhibit-3 from which it appeared that the learned appellate Court in Title Appeal No. 1639 of 1966 held that there cannot be any controversy that Baroda Adhikary has been an exclusive possession of the suit property for last 35 years prior to 17. 2. 1967. Though any settlement on the basis of the Amalnama had not been proved. It is implied, in the circumstances that Baroda Adhikari got a title at least by adverse possession even if other factors showing his such title are not taken into consideration. 2. 1967. Though any settlement on the basis of the Amalnama had not been proved. It is implied, in the circumstances that Baroda Adhikari got a title at least by adverse possession even if other factors showing his such title are not taken into consideration. ( 7 ) THE learned trial Judge also relied on Exhibit 7 and 7a and oral evidence of the witness on behalf of the plaintiff. The learned trial Judge also observed that there cannot be any new findings as to Baroda Adhikari's possession because the same will operate as res judicate. In view of the findings in Title Appeal No. 1639 of 1966 arising out of Title Suit No. 230 of 1963 which was decided earlier and there was a decree on appeal which confirmed that Decree of the trial Court at that point of time. Ultimately, the learned trial Judge observed that the plaintiff has acquired a valid title and he is in possession of the suit property. The learned trial Judge also observed that the oral evidence of the plaintiff are more convincing and consistent. The learned trial Judge found that the defendants appeared to have purchased the suit land from the original owner Nachu Dhali as it appears from Exhibit ?d? but there is no evidence either oral or documentary to show how and when the defendants have acquired possession over the suit property and how and when the plaintiff or his predecessors-in-interest have been dispossessed from the suit property after 17. 2. 1967 the date on which the learned Appellate Court held in Title Appeal No. 1639 of 1966 that the present defendant i. e. the plaintiff in that suit were not in possession of the suit property. Concludingly, the learned trial Judge observed that the plaintiff is in possession over the suit property and the defendants have no right, title and interest over the same. The learned trial Judge observed that though declaration of title has not been prayed for in an expressed manner, in view of section 38 (3) of the SPECIFIC RELIEF ACT, 1963, the Court may grant a perpetual injunction if the defendants invade or threats the plaintiffs right or enjoyment of the property. ( 8 ) MAKING the above observations, the learned trial Judge decreed the suit. ( 8 ) MAKING the above observations, the learned trial Judge decreed the suit. ( 9 ) THE Appellate Court below also concluding the observations that there is no reason to defer from the learned trial Court's judgment though made certain other observations dismissed the Appeal on contest with costs against the respondent. ( 10 ) NOW it is to be seen as to whether there is any substantial question of law or there are substantial questions of law which is or are to be decided in the Second Appeal. ( 11 ) ON consideration of the pleadings and other records, I am of opinion that following are the substantial question (s) of law which need be decided in this Second Appeal. 1. Whether immediately on promulgation of the West Bengal Estate Acquisition Act, 1953 and whether after vesting of right of the intermediary the appellants became direct tenants under the Sate, which was affirmed by payment and acceptance of rent to the State regularly and whether in that event the State is a necessary party or not. 2. Whether the appellants being the defendants by purchase of the suit property through registered Kabala from Nachu Dhali whose name appeared in the District Settlement Record of Rights in the year 1932 and as well as in the Revision Settlement Rights of Record prepared in 1954, the claim of the plaintiffs that their predecessors-in-interest acquired the same by accepting a tenancy on execution of an Amalnama is valid or not. 3. Whether the Court below erred in law by not considering that in the instant suit for injunction without prayer for recovery of possession and/or declaration of title the suit is maintainable under this SPECIFIC RELIEF ACT, 1963 or not. 4. Whether the learned appellate Court below came to proper finding on scrutiny of the trial Court's judgment read with evidence on record. 5. Whether a person claiming title over a land can claim ownership over the same land by way of adverse possession. 6. Whether the judgment and decree passed by the trial Court as well as the first appellate Court suffered perversity by making contradiction with records or by not considering the evidence on record. ( 12 ) DECISIONS relied on in this case by the learned counsel for the respective parties. On behalf of the appellants; 1. S. A. No. 10/68 dated 6. 8. 1974 (Unreported ). 2. ( 12 ) DECISIONS relied on in this case by the learned counsel for the respective parties. On behalf of the appellants; 1. S. A. No. 10/68 dated 6. 8. 1974 (Unreported ). 2. 1982 (2) CLJ page 143 (M/s. Qaiser Jahan v. Md. Yawoob ). 3. 60 CWN page 793 (Pankajini Devi v. Sudhir Dutta and Ors ). 4. 1974 (1) SCC page 675 (Sikhar Ch. Jain v. Digambar Jain Praband Karini Sabha and Ors. ). 5. 1977 (1) CLJ page 578 (Kanailal Mitra and Anr. v. Nityananda Roy and Anr. ). 6. 46 CWN page 20 (Anila Bala Devi v. Madhabendra Narain ). 7. AIR 1972 SC page 2685 (Ram Saran and Anr. v. Smt. Ganga Devi ). 8. 2001 (3) SCC page 179 (Santosh Hazari v. Purushottam Tewari ). 9. 2000 (5) SCC 652 (State of Rajasthan v. Harphool Singh ). 10. 47 Calwn 662 (Rani Harshamukhi v. Kashitindra Debray ). 11. AIR 1965 Cal. Page 328 (Jatindra Nath Malik v. Sushilendra Nath Palit ). 12. 1997 (3) SCC page 546 (Major Singh v. Rattan Singh) ( 13 ) 2000 (3) SCC 668 (Rohini Prasad and Ors. v. Kastur Chand and Anr. ). ( 14 ) AIR 1972 SC 2299 (M. Kallapa Setty v. M. V. Lakshminarayanan Rao ). ( 15 ) 2000 (1) SC page 434 (Iswar Das Jain v. Sohan Lal ). ( 16 ) 1995 (3) SCC page 33 (Mahadeo S. Shelke and Anr. v. Pune Municipal Corporation and Anr. ). On behalf of the respondent:1. AIR 1981 SC page 1209 (Bholaram v. Ameer Chand ). 2. AIR 1985 Cal. Page 197 (Sushila Hati v. Subhas and Ors. ). 3. AIR 1998 SC page 3063 (Sheel Chand v. Prakash Chand ). 4. 2000 (1) CLJ page 616 (Dr. S. K. Shome v. Jagadish Chakraborty ). 5. 2002 (2) CLJ page 1 (Smt. Suchitra Mandal and Ors. v. Shamashree Land Development Society and Ors. ). 6. 2002 (1) CLJ page 562 (Jagat Bandhu Batabyal v. Jiban Krishna Roy) ( 17 ) IT would appear from the plaint itself that the prayer in the suit does not contain any prayer for declaration of title and the prayers are quoted hereinbelow: (a)For permanent injunction restraining the defendants from disturbing thepossession of the plaintiff; (b)For cost of the suit; (c)For such other relief and reliefs which the plaintiff is entitled to get under the law and equity. ( 18 ) WHEN the above is the prayer the learned trial Judge as well as the appellate Court below tried to take advantage of section 38 (3) of this SPECIFIC RELIEF ACT, 1963, 1963 and for the sake of discussion under sections 34, 38 and 42 of this SPECIFIC RELIEF ACT, 1963 are quoted hereinbelow: section 34. Discretion of Court as to declaration of status or right, any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.- A trustee of property is a person interested to deny? a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee. Section 38. Perpetual injunction when granted.- (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or, by implication. (2) When any such obligation arises form contract, the Court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely: (a)Where the defendant is trustee of the property for the plaintiff; (b)Where there exists no standard for ascertaining the actual damage caused, or likely to be caused by the invasion; (c) Where the invasion is such that compensation in money would not afford adequate relief; (d)Where the injunction is necessary to prevent a multiplicity of judicial proceedings. Section 42. Injunction to perform negative agreement. Section 42. Injunction to perform negative agreement. Notwith-standing anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: provided that the plaintiff has not failed to perform the contract so far as it is binding on him. ( 19 ) IT would clearly appear from the judgments referred to above as well as from the ingredients of the sections that in the facts and circumstances section 38 (3) of SPECIFIC RELIEF ACT, 1963 cannot be made applicable and both the Courts below made the wrong interpretation of law and passed the judgments and decrees. ( 20 ) IT will also appear from the judgment and decree itself that the Exhibits were not considered by the Courts below inasmuch as in the judgment of the trial Court it has observed ?that Baroda Adhikari has been in exclusive possession of the suit property for the last 35 years, prior to 17. 2. 1967 - though any settlement on the basis of the Amalnama had not been proved?, that is, contrary to evidence on record and admittedly contradiction is clear in itself. In another place the learned trial Judge raises the point of res judicata once, and then constructive res judicata referring to the earlier suit and appeal in which Baroda Adhikari was the defendant No. 6 which is also contrary to evidence on record inasmuch as that suit was in connection with premises tenancy. Both the Courts below did not consider at all that when a person claims possession in adverse, he cannot claim ownership. Both the Courts below came to a wrong finding and did not consider the sale deed dated 20. 12. 1962 which is Exhibit - 'd' and which was executed by Nachu Dhali, the person recorded. 23. From all these findings of both the Courts below it appears that the judgments and decrees passed by the learned trial Judge as well as the appellate Court below are contrary to the evidence on record and are perverse. 12. 1962 which is Exhibit - 'd' and which was executed by Nachu Dhali, the person recorded. 23. From all these findings of both the Courts below it appears that the judgments and decrees passed by the learned trial Judge as well as the appellate Court below are contrary to the evidence on record and are perverse. It does not appear from the records also and/or from the judgment and decree of the appellate Court below also that the appellate Court below complied with the statutory mandate passed on it by section 96 of the CP Code by critically analysing the judgment and decree of the trial Court and as such committed a grave error. ( 21 ) IN view of the discussions made above, the appeal is allowed and judgment and decree passed by the appellate Court below affirming the judgment and decree passed by the trial Court is set aside. Parties are to bear their own costs respectively. Let the LCR be sent down to the Courts below forthwith. Urgent xerox certified copy, if applied for, will be given expeditiously. Appeal allowes.