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Nank Chand Vs. Om Parkash Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 177D of 1965
Judge
Reported in4(1968)DLT234
ActsCode of Civil Procedure (CPC), 1908 - Sections 100
AppellantNank Chand
RespondentOm Parkash Gupta and ors.
Advocates: D.N. Bhasin,; R.L. Aggarwal and; Arun Kumar, Advs
Excerpt:
.....clearly establish the possession of the defendant with the result that no injunction could have been granted in this case in favor of the plaintiffs, restraining the defendant from using the plto in suit. in our country, it is well i known that, as a matter of habit, people do utilise various vacant pltos whether they are in thickly populated area or in a thinly populated area and this kind of user is ordinarily nto objected to as it is based on assumed consent, but it cannto possibly form the basis of a plea of title or adverse possession or even of possession conferring right......possession particularly in the background of the admitted situation of the plto which is a vacant plto and is nto enclosed by any thing by the defendant. the submission, that merely because this plto is a vacant plto in a thickly populated area and that the defendant was in the habit of inteimittently using it, that doctrine that possession follows title in the case of vacant pltos is nto attracted, cannto be accepted because on principle. i find no distinction in the case of a vacant plto in a thickly populated area and a vacant plto in a village or a thinly populated area as is presumably postulated by the counsel. in our country, it is well i known that, as a matter of habit, people do utilise various vacant pltos whether they are in thickly populated area or in a thinly.....
Judgment:

I.D. Dua, C.J.

(1) The learned counsel for the appellant has addressed very elaborate arguments and has even tried to take me through the pleadings and the evidence led in the case. But inspire of the persuasive arguments addressed, I am afraid, no legal infimity in the conclusion of the lower appellate court on the question of possession of the plto in suit has been made out. It is ntoeworthy that the defendant did nto claim any title in himself and all that was said was that the plaintiffs were nto the owners of the plto in suit. Before me, no attempt has been made to question the conclusion on the title of the plaintiffs. Arguments have been confined to the limited point that the evidence on the record does clearly establish the possession of the defendant with the result that no injunction could have been granted in this case in favor of the plaintiffs, restraining the defendant from using the plto in suit. On this point also, the conclusion of the Lower Appellate Court is one of fact.

(2) Shri Dina Nath Bhasin has, however, as a last resort attempted to argue that there is no evidence in support of the conclusion of the lower Appellate Court. The evidence of Shiv Dayla, P. W. 3, a chartered accountant has been read out to me. According to this evidence, all that can be said is that the defendant was in the habit of intermittently using the plto in suit for storing his goods and there were always some kind of disputes going on between the parties. This evidence, in my opinion, is wholly insufficient to show the defendant's possession particularly in the background of the admitted situation of the plto which is a vacant plto and is nto enclosed by any thing by the defendant. The submission, that merely because this plto is a vacant plto in a thickly populated area and that the defendant was in the habit of inteimittently using it, that doctrine that possession follows title in the case of vacant pltos is nto attracted, cannto be accepted because on principle. I find no distinction in the case of a vacant plto in a thickly populated area and a vacant plto in a village or a thinly populated area as is presumably postulated by the counsel. In our country, it is well I known that, as a matter of habit, people do utilise various vacant pltos whether they are in thickly populated area or in a thinly populated area and this kind of user is ordinarily nto objected to as it is based on assumed consent, but it cannto possibly form the basis of a plea of title or adverse possession or even of possession conferring right. While dealing with conclusion of fact on second appeal, it must always be remembered that such conclusions are final and unassailable and this Court has no power to interfere with them however grossly erroneous they may be in the matter of appeciation of evidence, unless they are tainted with a legal infirmity. If there is legal evidence in support of , such conclusions, that in sfficiency of such evidence is an inadmissible argument on second appeal. The doctrine of inadequancy of evidence has no applicability under our law to second appeats.

(3) But apart from what has just been observed on the question of possession, the plaintiff's title being unchallengeable, the defendant's possession had to be establised by him and if there is no evidence of his possession, or the evidence has nto been believed as impressive or trustworthy, of if it is considered inadequate to establish his possession, then there is no scope for the argument that the lower Court's conclusions are based on no evidence. It was accordingly unnecessary for the plaintiffs to file a suit for possession against the defendant as suggested on behalf of the appellant.

(4) For the foregoing reasons, this appeal fails and the same is dismissed with costs.


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