TaxTMI 
TaxTMI 
1979 (6) TMI 135
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....e four rooms on the first floor, excluding the varandah. The 1st appellant came to Court and asked for an injunction against his tenant, the respondent, because, according to him, the respondent was attempting to occupy even the first floor verandah which was not part of the tenancy in his favour. 2. The respondent resisted the suit, asserting that its tenancy comprised the whole of the first floor, and this included the verandah as well. 3. The trial Court recorded a finding that the respondents tenancy of the first floor included the verandah and hence there was no question of the respondent interfering with any one else's possession in that portion. On this basis, the trial Court dismissed the suit. On appeal, the appellate Cou....
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.... finding concluded the case in the appellant's favour. Learned Counsel was quite alive to the position that he had to dislodge the appellate Court's finding that the verandah was in the respondent's possession, for it was vital for the appellant to establish his own possession of the verandah as on the date of the suit in order to ask for an injunction from the Court in his favour. 6. Ordinarily, a finding as to possession must be regarded as a finding of fact, but even a finding of fact can be upset in second appeal on the score that there was no evidence to support it or that it was based on a misconception. 7. For recording the finding that neither the first appellant nor the second appellant was in possession of the ve....
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....tly, the appellate Court's finding on the vital issue of possession is based wholly and exclusively on what it regarded as self-defeating admissions on the part of the 1st and 2nd appellants. The Court did not find, and did not rely on, any other piece of evidence or material on record to support its conclusion. It is, therefore, pertinent to examine, in this second appeal, whether the appellant's admissions, such as they were, constitute evidence on which any judicial Tribunal, properly instructed in the law, could have legitimately rested its determination that possession of the suit verandah was with the respondent and not with the appellants at the time of the institution of the suit. 10. The law by no means regards admission....
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....before the suit or that it persisted till that date. As for the 2nd appellant's statement that he was 'thrown out' from the verandah, this cannot amount to an all-out admission that he was dispossessed of the verandah, lock stock and barrel. I am accordingly satisfied that the admissions relied on by the appellate Court, even accepting them at their face value, cannot support its determination of the issue as to possession. 12. If we disregard the appellate Court's interference from the so-called admissions of the appellant, as I have demonstrated we should, what else is there to support the appellate Court's determination on the question of possession? The answer is, nothing. 13. The respondent had filed a cross-o....