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Rajasthan High Court · body

1999 DIGILAW 251 (RAJ)

Bhopal Singh v. State

1999-02-25

G.L.GUPTA

body1999
Honble GUPTA, J.–This revision is directed against the order dt. 18.2.98 passed by the learned Judicial Magistrate, Chittorgarh, in favour of respondent no.2 Narain Nath for the interim custody of the tractor. (2). The brief facts of the case are that in connection with F.I.R. No. 822/85 P.S. Kotwali, Chittorgarh, Tractor No. RJK 6745 and trolley were seized by the police on 28.11.85. One Pikesh Kumar made an application on 10.12.85 for the interim custody of the tractor and trolley stating that owner of the vehicle was Narain Nath but the same was registered in his name as he was the financer of the tractor. The application of Pikesh Kumar was allowed by the Magistrate vide order dt. 6.1.86. However, Pikesh Kumar did not take the delivery of the vehicle, instead Chothmal claiming to be the power of attorney-holder of Pikesh Kumar made an application for the delivery of the tractor and trolley. The tractor and trolley were handed over to him on his furnishing personal bond in the sum of Rs.75,000/- and a surety of the like amount. It was agreed by Chothmal that he would not sell or mortgage the vehicle nor would make alteration in the body of the vehicle. Jagdish Gadiya stood surety for him. Thereafter on 27.11.87 Narain Nath made an application before the Magistrate for the custody of the tractor stating that he has been deceived by Chothmal when he got the tractor from the Court. This application of Narain Nath remained pending for more than 3 years. He again made an application on 11.4.91 for the custody of the tractor, stating that Pikesh Kumar had sold the tractor to Bho- pal Singh (petitioner). The learned Magistrate gave notice of the application to Bhopal Singh. After hearing the counsel for the parties, the learned Magistrate passed the impugned order in favour of Narain Nath (respondent), Hence, this revision petition by Bhopal Singh. (3). Mr. Mehta, learned counsel for the petitioner contended that the Magistra- te had no jurisdiction to review his own order dt. 6.1.86. According to him, when once the Magistrate had passed an order in favour of Pikesh Kumar, he could not direct the custody of the tractor in favour of Narain Nath. His further submission was that Narain Nath being not the registered owner of the tractor, cannot ply the same. 6.1.86. According to him, when once the Magistrate had passed an order in favour of Pikesh Kumar, he could not direct the custody of the tractor in favour of Narain Nath. His further submission was that Narain Nath being not the registered owner of the tractor, cannot ply the same. Whereas the petitioner being the registered owner is the best person entitled to the interim custody of the tractor. (4). As against this, Mr. Choudhary, learned counsel for respondent Narain Nath contended that the Magistrate had jurisdiction to review the order as the tractor was given in the interim custody of Pikesh Kumar without notice to Narain Nath. He pointed out that even Pikesh Kumar had stated in his application that the tractor belonged to Narain Nath. Pointing out that Pikesh Kumar has violated the terms of the order of interim custody when he sold the vehicle to the petitioner without the permission of the Court, he canvassed that the Magistrate has rightly not considered the petitioner as the person entitled to the custody of the vehicle. (5). I have carefully considered the above arguments. At the out set, it may be stated that both the learned counsel pointed out that the police has not submitted a report u/S. 173 Cr.P.C. as yet. It is really a sorry state of affair that in a case registered way back in 1985, the police has not filed a report u/s. 173 Cr.P.C. It shows that either the police is negligent in the performance of its duty or it is so incompe- tent that it cannot take decision even in petty matters. (6). Be that as it may, the question to be determined is whether the Magistrate had jurisdiction to review the order dt. 6.1.86. It is not disputed that before deciding the application of Pikesh Kumar the Magistrate had not issued notice to Narain Nath though in the application itself it was stated that the tractor belonged to Narain Nath. There is therefore no illegality when the Magistrate on the application of Narain Nath proceeded to reconsider the question of interim custody of the vehicle. The order dt.6.1.86 was certainly not in the nature of the final order. The Magistrate had therefore a right to recall his order for good reasons. There is therefore no illegality when the Magistrate on the application of Narain Nath proceeded to reconsider the question of interim custody of the vehicle. The order dt.6.1.86 was certainly not in the nature of the final order. The Magistrate had therefore a right to recall his order for good reasons. In the case of Swami Brahmanand Bharti vs. Babu Lal Swami (1) and Bhola Singh vs. Darshan Singh (2), this Court has held that the order of interim custody of the property is of interlocutory nature, which can be withdrawn by the Magistrate for good reasons. In the instant case, as already stated Narain Nath was not given notice of the application of Pikesh Kumar and even in the application of Pikesh Kumar it was stated that the tractor belonged to Narain Nath. Therefore, there were good reasons for the Magis- trate to recall his earlier order on the application of Narain Nath moreso, when it was brought to the notice of the Court that Pikesh Kumar had violated the terms of `Supurdaginama by transferring the tractor to petitioner Bhopal Singh. (7). The next question to be considered is whether the learned Magistrate has committed any error in delivering the custody of the vehicle to Narain Nath. Admit- tedly on the date of accident, the tractor belonged to Narain Nath as he has purchased the same from Akbar Ali, who was its registered owner, vide agreement dt. 10.10.83. The fact which has appeared on record indicates that Pikesh Kumar had rendered financial assistance to Narain Nath and, therefore, he got the registration of the vehicle transferred in him name. In any case, upto 6.1.86 it was the stand of Pikesh Kumar himself that the tractor belonged to Narain Nath. It is well settled that registration of the vehicle is not the condition precedent for transferring its ownership to the transferee. Registration of the vehicle is a formality. The movable property, like vehicle can be validly transferred by mere delivery. Akbar Ali under the agreement dt. 10.10.83 had handed over the delivery of the vehicle to Narain Nath. Therefore, even if the vehicle was not registered in the name of Narain Nath, yet he was the owner of the vehicle. Registration of the vehicle is a formality. The movable property, like vehicle can be validly transferred by mere delivery. Akbar Ali under the agreement dt. 10.10.83 had handed over the delivery of the vehicle to Narain Nath. Therefore, even if the vehicle was not registered in the name of Narain Nath, yet he was the owner of the vehicle. It is also significant to point out that it is not the case for the petitioner that Narain Nath had not made payment to Pikesh Kumar or that Narain Nath had sold the vehicle to Pikesh Kumar. Since Narain Nath was the owner of the vehicle Pikesh Kumar had no right to sell it to the petitioner. The learned Magistrate has rightly observed that Pikesh Kumar did not have ownership right of the tractor, and he could not pass better title to the petitioner. As a matter of fact, Pikesh Kumar has violated the terms of `Supurdaginama when he sold the tractor to the petitioner without the permission of the Court. In these circumstances, the learned Magistrate was perfectly justified in recalling the earlier order and ordering the delivery of the vehicle to Narain Nath. (8). There may be substance in the contention of the learned counsel for the petitioner that Narain Nath cannot ply the tractor without the registration, but it is the problem of Narain Nath. The question to be considered by the Magistrate was as to who is the best person entitled to the interim custody of the tractor. Looking to the facts & circumstances of the case, certainly Narain Nath is the person entitled to the custody of the tractor. The learned Magistrate has not erred in passing the impugned order. (9). Consequently, there is no merit in this revision petition which is hereby dismissed. A copy of this order be sent to Supdt. of Police, Chittorgarh, who is directed to ensure that the S.H.O. concerned files a report u/S. 173 Cr.P.C. before the Magistrate concerned within 6 weeks from the date a copy of this order is placed before him (Supdt. of Police).