Champalal v. Ramchander — 1975 DIGILAW 122 (RAJ)

MODI, J.—This is a second appeal by the plaintiff Champalal against the judgment and decree of the District Judge, Bikaner, dated 21-1-67, affirming the decree of the Civil Judge, Ratangarh, dismissing the suit. 2. The dispute relates to the recovery of a jeep car bearing registration No. RJK 1120 or its price amounting to Rs. 5000/. 3. The defendant respondant No. 2 Jiwanram is the uncle of the defendant-respondent No. 1 Ramchander. The plaintiff-appellant is a resident of Bhinasar, district Bikaner, whereas the defendant-respondents are the residents of Hanuman-garh, district Garganagar. Both the towns Bhinasar & Hanumangarh, were formerly the parts of the erstwhile State of Bikaner which subsequently merged into the State of Rajasthan. The plaintiff and the defendant Ramchander knew each other very well from the times of the erstwhile State of Bikaner. 4. The plaintiff came with the case that the defendant Ramchander was in need of a jeep car and since he knew that the plaintiff owned and possessed jeep-car No. RJK 1120, he sent his uncle Jiwanram to bring the plaintiffs jeep-car for sometime for his use as amanat. At the request of Jiwanram on behalf of Ramchander, the plaintiff delivered the said vehicle to Jiwanram on the condition that the said vehicle would be returned to the plaintiff as and when demanded by him. The jeep car was taken away by Jiwanram from Binasar on 2-12-56. The plaintiff alleged that the certificate of registration of jeep-car No. RJK 1120 stood in his name and he continued to pay Government tax of it. The plaintiff further alleged that he demanded return of his jee-car on No. 18-1-62 but the defendant Ramchander refused to do so. The plaintiff therefore instituted the present suit on 25-10-62, that is, after about five years and ten months from 2-12 56 for the recovery of the jeep-car No. RJK 1120 or its price amounting to Rs. 5,000. Both the defendants, namely, Ramchander and Jiwanram filed separate written statements. They traversed all material allegations made in the plaint. Both the defendants denied the plaintiffs ownership to the jeep-car RJK 1120. They also denied delivery of the jeep-car by the plaintiff to Jiwanram as amanat at the request of Ramchander on the condition that it would be returned when demanded by the plaintiff. They also denied that the said vehicle was demand-ed by the plaintiff on 18-1-62. Both the defendants denied the plaintiffs ownership to the jeep-car RJK 1120. They also denied delivery of the jeep-car by the plaintiff to Jiwanram as amanat at the request of Ramchander on the condition that it would be returned when demanded by the plaintiff. They also denied that the said vehicle was demand-ed by the plaintiff on 18-1-62. Defendant Ramchander further pleaded that he purchased the jeep car RJK 1120 in the year 1958 from one Bahadur Singh and since then he has been depositing its tax etc. It was also pleaded that the suit was barred by limitation and was also not triable by the Civil Judge, Ratangarh. On the pleadings of the parties, the trial court framed the following issues:— ^^¼1½ D;k izfroknh ua- 1 us tfj;s thoujke izfroknh ua- 2 thi vkj- ts- ds- 1120 eqruknk oknh ls vekur fnukad 2-12-56 dks Hkhuklj ls eaxkbZA ¼2½ D;k thi eqruktk feyfd;r oknh gSA ¼3½ D;k vki eqruktk dh dher 5000@& :i;s gSA ih ¼4½ D;k nkok vUrj fe;kn gSA ¼5½ vk;k vnkyr gktk dks v[fr;kj lekvr eqdnek gktk gSA ¼6½ nknjlh^^ On consideration of the oral and documentary evidence adduced by the parties, the trial court recorded findings on issues Nos. 1 and 2 against the plaintiff. The trial court held that the plaintiff has failed to prove that the jeep-car No. RJK 1120 was owned by him and that it was delivered by him to Ramchander through Jiwanram as amanat on 2-12 56. As regards the price of the jeep-car, the trial Court held that the plaintiff has failed to prove that he purchased the jee-pear for Rs. 5000. It has further held that it stands proved that Ramchander purchased the jeep-car from Bahadursingh for Rs 3500. He therefore held that the price of the jeep-car was Rs. 3500. Dealing with issue No. 4, the trial court held that the suit was governed by Art. 49 of the Indian Limitation Act, 1908 and since the jeep-car was to be returned after general elections which ended in February 1957, the suit was barred by time, for, the wrongful possession of the defendant commenced from February 1957 and the suit was filed long after the expiry of three years from February 1957. Regarding issue No. 5 relating to the jurisdiction, the learned Civil Judge held that he had jurisdiction to try the case. Regarding issue No. 5 relating to the jurisdiction, the learned Civil Judge held that he had jurisdiction to try the case. On the aforesaid findings, the learned Civil Judge dismissed the suit. On appeal by the plaintiff, the learned District Judge affirmed all the findings arrived at by the trial court and dismissed the appeal. Hence is second appeal by the plaintiff. 5. Mr. H. P. Gupta, the learned advocate for the plaintiff appellant has strong-ly criticised the judgment of the learned District Judge on the question of the plaintiffs title over the jeep-car RJK 1120. His foremost grievance is that the learned District Judge did not at all refer to very important evidence of Omprakash PW 7, a clerk of the transport department,who gave his statement on the basis of the record of the transport department. It is argued that from his statement it stands proved that the registration of the jeep-car RJK 1120 was transferred in the name of the plaintiff on 24-10-56 and thereafter it stood in the name of the plaintiff and was not transferred in the name of any other person. The learned counsel further urges that the person in whose favour the certificate of registration stands would be the owner thereof. I find considerable force in the above contention. 6. Now sec. 22 of the Motor Vehicles Act makes registration obligatory before any such motor vehicle could be driven either by the owner thereof or by some person on his behalf. The said section provides that no person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place for the purpose of carrying passengers or goods unless the vehicle is registered and certificate of registration of the vehicle has not been suspended or cancelled and the vehicle carries a registration mark displayed in the prescribed manner. Sec. 24 of the said Act provides as to how registration to is be made. An application by or on behalf of the owner of a motor vehicle for registration has to be given in certain form set out in the Schedule and it shall contain certain information required therein. Sec. 24 of the said Act provides as to how registration to is be made. An application by or on behalf of the owner of a motor vehicle for registration has to be given in certain form set out in the Schedule and it shall contain certain information required therein. The proviso thereto then says that where a motor vehicle is jointly owned by more persons then on, the application shall be made by one of them on behalf of all the owners and such applicant shall be deemed to be the owner of the motor vehicle for the purposes of this Act. It is thereafter that the regis-tration certificate is issued. Sec. 28 says that the certificate of registration so issued in respect of a vehicle shall be effective throughout India. Then sec.31 provides for a trans-fer of ownership of any such vehicle. It follows from the provisions referred to above that the registration certificate is an essential requirement before any such motor vehicle can be made use of and that any person in whose favour this certificate of registra-tion is issued would obviously be the owner thereof. In case of any transfer of owner-ship in respect of that motor vehicle, the procedure contemplated under sec. 31 has to be followed and till any such transfer is entered in the certificate of registration, it has to be presumed that the person in whose favour such certificate of registration stands, is the owner. 7. Now, in the present case, it is abundantly clear from the statement of PW 7 Om-prakash who brought the original record of the transport department and gave his state-ment after looking into the entries made therein that the old registration of the jeep-car RJK 1120 was DLC 7057 and its registration certificate was in the name of the General Traders. The witness then says that this certificate of registration was transferred in the name of Jiwanram son of Kushlaram of Hanumangarh (defendant No. 2) and ultimately on 24-10-56 it was transferred in the name of the plaintiff. He has further deposed that thereafter no transfer of this jeep car was recorded in the name of any other person. He has also deposed that Ex. 1 is the duplicate copy of the registration certificate issued from the transport department. The learned District Judge even did not care to refer to his statement in his judgment. He has further deposed that thereafter no transfer of this jeep car was recorded in the name of any other person. He has also deposed that Ex. 1 is the duplicate copy of the registration certificate issued from the transport department. The learned District Judge even did not care to refer to his statement in his judgment. The trial court discarded his testimony on the ground that it did not accord with the registration certi-ficate Ex. 1 in as much as Ex 1 contains the name of the plaintiff only, secondly, the date entered therein is 11-4 55 which is unsigned and thirdly, at item No. 14 there appears signatures of the registration authority but without any date. Now, none of these discrepancies pointed out by the trial court in its judgment was put to PW 7 Omprakash Had these discrepancies been pointed out to PW 7 Omprakash he would have clarified them and gave satisfactory explanation for each one of them. These discrepancies, in my opinion, are wholly insufficient to hold Ex. 1 to be a forged docu-ment or to discard the oral testimony of PW 7 Omprakash, which is based on the original record of the transport department. 8. I have carefully gone through the statement of PW 7 Omprakash and also examined minutely Ex. 1. I feel no hesitation to say that discrepancies pointed out by the trial court are all immaterial and do not render the statement of Omprakash in any way unreliable. 1 therefore hold that the registration certificate of the jeep-car RJK. 1120 stands in the name of the plaintiff and it continued to be in his name till PW 7 Omprakash was examined on 7-8-63. I further held that the plaintiff has succeeded in proving his title to the jeep-car RJK 1120 on the date of the suit. 9. The learned counsel for the plaintiff appellant has next contended that the two courts below committed grave error in disbelieving the evidence of the plaintiff and his witnesses and in holding that Jiwanram at the instructions of Ramchander did not take away the jeep-car for the use of Ramchander on 2-12-56 as amanat on the con-dition that it would be returned on demand by the plaintiff. He has further contend-ed that the two courts below would not have decided this issue No. 1 against the plaintiff had they found the plaintiff to be the owner of the jeep-car. This argument has not impressed me at all. The question whether the jeep-car was taken by Jiwanram for the use of Ramchander on certain assurance is a pure question of fact and it is well settled that "the High Court in second appeal cannot go into the questions of fact however erroneous the findings of fact recorded by the courts of fact may be." See Parasnath Thakur vs. Smt. Mohan Dasi(l). The learned counsel for the plaintiff did not point out any error of Jaw or procedure which might justify interference by this Court on a question of fact concurrently recorded by the courts below. 10. The learned counsel for the plaintiff-appellant has next contended that it is admitted by the defendant Ramchander in his written statement as well as in his statement as a witness that he purchased the jeep-car RJK. 1120 in the year 1958 from Bahadursingh for Rs. 3500. From the above admission it is argued that it stands established that Ramchander came into possession of the jee-car at least in the year 1958 and that being the case, the plaintiff is entitled to a decree for the recovery of the jeep-car or its price. On (he other hand, it is argued on behalf of the defendant Ram Chander that no decree can be passed in this case in favour of the plaintiff as the suit is prima facie barred by limitation. 11. The question therefore that arises is whether in the circumstances of the case, the suit is within time. Since the suit was instituted on 25-10-62 prior to the coming into force of the Limitation Act, 1963, it is governed by the old Limitation Act, 1908. According to the learned counsel for the plaintiff-appellant, the suit is governed by Art 49 of the Limitation Act of 1908 whereas, according to the learned counsel for the defendant Ramchander, it is governed by Art. 48. These Articles of the Limitation Act, 1908, read as under:— "Sec. 48— For specific movable property lost or acquired by theft, or dishonest mis-appropriation or conversion, or for compensation for wrongfully taking or detaining the same. These Articles of the Limitation Act, 1908, read as under:— "Sec. 48— For specific movable property lost or acquired by theft, or dishonest mis-appropriation or conversion, or for compensation for wrongfully taking or detaining the same. 3 years When the person having the right to the possession of the property first learns in whose possession it is. Sec. 49— For other specific movable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same. 3 years When the property is wrongfully taken or injured, or when the detainers possession becomes unlawful." Art. 48 applies to suits for recovery of specific movable property which has been lost or acquired by theft or dishonest misappropriation or conversion, while Art. 49 applies to suit for recovery of other specific movable property. The word other is significant. According to me, the word other in Art. 49 means specific movable property in general as distinguished from the movable property described in Art. 48. It is nobodys case that the jeep car was lost or it was acquired by theft or dishonest mis-apporopriation. According to the learned counsel for the defendant, the case falls within the purview of acquisition of property by conversion. On the other hand, it is contended on behalf of the plaintiff appellant that in order to attract Art. 48, it is necessary that the conversion should have been dishonest one and since there was no proof of dishonest conversion in the present case, the suit is governed by Art. 49. This question may not detain me any longer. There is the high authority of the Privy Council in Lewis Pugh Evans Pugh vs. Ashutosh Sen(2) which lays down that Art. 48 applies to all conversions whether dishonest or not. 12. So far as the definition of conversion is concerned, it is an act of wilfully interfering with the movable property without lawful justification whereby any person entitled thereto is deprived of its possession. See Salmond on Torts, 6th Edition page 374. Again, a wrongful taking or wrongful retention which results in the loss of the movable property to the owner there of also falls into the definition of conver-sion. In the present case, the plaintiff has failed to prove that the defendants took away the jeep car with his permission. See Salmond on Torts, 6th Edition page 374. Again, a wrongful taking or wrongful retention which results in the loss of the movable property to the owner there of also falls into the definition of conver-sion. In the present case, the plaintiff has failed to prove that the defendants took away the jeep car with his permission. It is also not known how and in what manner the defendant Ramchander came to be in possession of the jeep-car. The allegation of Ramchander that he purchased the jeep car from Bahadur Singh in the year 1958 is not supported by any evidence except the statement of the defendant himself. I have gone through the testimony of DW Ramchander and it is not at all convincing in view of the certificate of registration standing is the name of the plaintiff In absence of such evidence, the only inference that follows or may be drawn is that the defendant Ramchander came into possession of the jeep-car wrongfully or without lawful justification, that is, not as rightful owner. The action of the defendant Ram Chander thus squarely falls within the definition of conversion. In this view of the matter, it is Art. 48 which applies to the present case and I hold accordingly. Under that Article, the limitation of three years begins to run when the person having the right of possession of the property first learns in whose possession it is. 13. Now, assuming that the plaintiffs case is true, then too the suit is barred by time for, according to the plaintiff, he had the knowledge from the very inception when the jeep-car was taken from him in December 1956 that it was possessed by the defendant Ram Chander. The suit was filed on 25-10-62. Obviously it is barred by time. Again, if the plaintiffs case has no truth in it as it has been found by the courts below, then the onus lay upon him to prove on what date he learnt that the jeep car was in possession of the defendant Ramchander. The plaintiff has utterly failed to discharge this burden. There is no evidence whatsoever on the record as to when the plaintiff for the first time learnt that the jeep-car was with Ramchander. 14. The plaintiff has utterly failed to discharge this burden. There is no evidence whatsoever on the record as to when the plaintiff for the first time learnt that the jeep-car was with Ramchander. 14. It has been laid down by their lordships of the Supreme Court in K. S. Nanji vs. Jatashankar Dossa(3) that "a person having the right to the possession of a movable property wrongfully taken from him by another can file a suit to recover the said specific movable property or for compensation therefor within three years from the date when he first learns in whose possession it is. Obviously where a person has a right to sue within three years from the date of his coming to know of a certain fact, it is for him to prove that he had the knowledge of the said fact on a particular date, for the said fact would be within his peculiar knowledge. That apart, sec. 3 of the Limitation Act makes it obligatory on a court to dismiss a suit barred by limitation, although limitation has not been set up as a defence, indicating thereby that it is the duty of a plaintiff to establish, at any rate prima facie, that the suit is within time. It is the obligation of the plaintiff to satisfy the court that his action is not barred by lapse of time." 15. With whatever angle the case is viewed, the suit is barred by limitation. 16. The result is that the appeal fails and it is dismissed. Having regard to the facts and circumstances of the case, the parties are left to bear their own costs throughout. 17. The prayer for Leave to Appeal is refused.