TMI Blog1999 (2) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... an extent of 30 feet north-south and 90 feet east-west. In the front portion, plaintiff had put up superstructure and the back portion was kept vacant and the same as used by plaintiff's family for ancillary purposes. 5. Defendant, who is residing adjacent to plaintiff's house, is disturbing possession of plaintiff by storing and dumping waste materials in suit property and is creating nuisance. During rainy season, entire vicinity becomes unhygienic and atmosphere also get foul smell. Even though plaintiff requested defendant not to create such nuisance, it is of no avail and hence plaintiff issued lawyer's notice which, was not even replied. Second notice was also issued in 1994 for which also there was not positive result. It is for the above reasons plaintiff came to the court with above suit. 6. In the written statement filed by appellant it is contended that himself and his forefathers have been living adjacent to suit property belonging to Sri Muthuvinayaar Nagamuthu Mariamman Devasthanam for the past more than 80 years by constructing a brick build house. It is his case that plaintiff is not in possession of entire area of 30 x 90 feet and he has been usi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue Records referred to by the Advocate Commissioner that the entire suit property does not belong to the lessor of plaintiff? (6) Whether any act done or proceedings taken by a person or authority having no right, clothe the person claiming under the said act proceeding with any right? 11. When the matter came for admission, I ordered notice of motion and interim stay was also granted for a period. Subsequently, respondent entered appearance and entire matter was heard. 12. Even though six questions of law have been raised, learned Counsel for appellant only argued question Nos. 4 and 5. Hence, I need consider only those points which were urged by learned Counsel for appellant. 13. I will first consider question No. 5. This question deals with finding of possession in courts below in favour of plaintiff. 14. Substantial question of law No. 5: Question as to who is in possession and what is the area in the possession of Plaintiff are all questions of fact and I do not find any question of law much less substantial question of law on those points. 15. Since learned Counsel for appellant submitted that courts below have not considered evidentiary value of commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... world or against all the world except certain persons. There are, therefore, three requisites, of possession. First there must be actual or potential physical control. Secondly, the physical control is not possession unless accompanied by intention, hence if a thing is put into the hand of a sleeping person he has no possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs for if the thing shows no signs of being under the control of anyone, if is not possessed. .. .. .. Actual user without animus possidendi is not possession under the law. So, mere tethering or grazing cattle or storing logs or manure by one person on the land of another is not possession of such land. Isolated acts of user such as drying fish or exposing fishing nets on the seashore are not possession. But animus possidendi must be accompanied by possession. So mere intention to possess without accompanied by physical possession is no possession.... 19. Appellant claims that he is in possession for the last 80 years. But he has not produced scrap of evidence to substantiate his claim by any documentary evidence. As against the said case, the lease deed in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uits defendant was not a party. Merely because defendant was not party, can he contend that he is not bound by the judgment? 25. In this case, defendant contends that he is in possession of portion of scheduled property from the same temple. It was the temple who was party in the earlier two litigations. Defendant is claiming under them. A decision was rendered holding the plaintiff is in possession and temple is not entitled to recover the property and temple is not entitled to interfere with the possession of plaintiff. It cannot be said that these Judgments are irrelevant. 26. In Srinivas v. Narayan [1955] 1 SCR 1 , their Lordships held that the judgments are admissible under Section 13 of the Evidence Act as assertions and are recognised. It was held that such judgments are admissible as instances in which there was a claim and assertion that certain properties belong to joint family in a subsequent suit for partition for which very same properties are claimed as self-acquired properties. 27. In the same volume in Sital Das v. Sant Ram AIR 1954 SC 606 , in paragraph 20, it is held thus, ...But the judgment itself, we think, can be received in evidence under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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