Champalal v. Ramchander

1. This is a second appeal by the plaintiff Champalal against the judgment and decree of the District Judge, Bikaner, dated 21-1-1967, 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. 5,000. The defendant-respondent 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 Hanumangarh, district Ganganagar. Both the towns Bhinasar and 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 oi Bikaner.

3. 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 plaintiff's 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 Bhinasar on 2-12-1956. 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 jeep-car on 18-1-1962 but the defendant Ramchander refused to do so. The plaintiff therefore instituted the present suit on 25-10-1962, that is, after about five years and ten months from 2-12-1956 for the recovery of the jeep-car 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 plaintiff's 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 demanded by the plaintiff on 18-1-1962. 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:--

‘‘1. क्या प्रतिबादी नं. 1 ने जरिये जीवनराम प्रतिवादी नं. 2 जीप आर. के. के. 120 मुतनादा वादी से अमानत दिनांक 2-12-56 को मोनास से मंगाई । 2. क्या जीप मुतनाजा मिलकियत वादी है । 3. क्या आप मुतनाजा की किमत 5000/- रूपये है । पी 4. क्या दावा अन्दर मियाद है । 5. आया अदालत हाजा को अकत्यार जमानत मुकदमा हाजा है । 6. दादरसी’’ 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 2-12-1956. As regards the price of the jeep-car, the trial court held that the plaintiff has failed to prove that he purchased the jeep-car for Rs. 5,000. It has further held that it stands proved that Ramchander purchased the jeep-car from Bahadursingh for Rupees 3,500. He therefore held that the price of the jeep-car was Rs. 3,500. Dealing with issue No. 4, the trial court held that the suit was governed by Article 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. 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 this second appeal by the plaintiff.

4. Mr. H.P. Gupta, the learned advocate for the plaintiff-appellant has strongly criticised the judgment of the learned District Judge on the question of the plaintiff's 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 P. W. 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 24-10-1956 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.

5. Now Section 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. Section 24 of the said Act provides as to how registration is to 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 than one 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 registration certificate is issued. Section 28 says that the certificate of registration so issued in respect of a vehicle shall be effective throughout India. Then Section 31 provides for a transfer 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 registration is issued would obviously be the owner thereof. In case of any transfer of ownership in respect of that motor vehicle, the procedure contemplated under Section 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.

6. Now, in the present case, it is abundantly clear from the statement of P. W. 7 Omprakash who brought the original record of the transport department and gave his statement after looking into the entries made therein that the old registration of the jeep-car RJK 1120 was ILC 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 Kushhram of Hanumangarh (defendant No. 2) and ultimately on 24-10-1956 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. The trial court discarded his testimony on the ground that it did not accord with the registration certificate Ex. 1 inasmuch as Ex. 1 contains the name of the plaintiff only, secondly, the date entered therein is 11-4-1955 which is unsigned and thirdly, at item No. 14 there appears signature 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 P. W. 7 Omprakash. Had these discrepancies been pointed out to P. W. 7 Omprakash he would have clarified them and given satisfactory explanation for each one of them. These discrepancies, in my opinion, are wholly insufficient to hold Ex. 1 to be a forged document or to discard the oral testimony of P. W. 7 Omprakash, which is based on the original record of the transport department.

7. I have carefully gone through the statement of P. W. 7 Omprakash and also examined minutely Ex. 1. I feel no hesitation to say that the discrepancies pointed out by the trial court are all immaterial and do not render the statement of Omprakash in any way unreliable. I 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 P. W. 7 Omprakash was examined on 7-8-1963. I further hold that the plaintiff has succeeded in proving his title to the jeep-car RJK 1120 on the date of the suit.

8. 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 2-12-1956 as 'amanat' on the condition that it would be returned on demand by the plaintiff. He has further contended 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 v. Smt. Mohan Dasi, AIR 1959 SC 1204. The learned counsel for the plaintiff did not point out any error of law or procedure which might justify interference by this Court on a question of fact concurrently recorded by the two courts below.

9. 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 Bahadur-singh for Rs. 3,500/-. From the above admission it is argued that it stands established that Ramchander came into possession of the jeep-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 the other hand, it is argued on behalf of the defendant Ramchander that no decree can be passed in this case in favour of the plaintiff as the suit is prima facie barred by limitation. The question therefore that arises is whether in the circumstances of the case, the suit is within time. Since the suit was instituted on 25-10-1962 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 Article 49 of the Limitation Act of 1908 whereas, according to the learned counsel for the defendant Ramchander, it is governed by Article 48. These Articles of the Limitation Act, 1908, read as under:--

"Art. 48.

Article 48 applies to suits for recovery of specific movable property which has been lost or acquired by theft or dishonest misappropriation or conversion, while Article 49 applies to suits for recovery of other specific movable property. The word 'other' is significant. According to me, the word 'other' in Article 49 means specific movable property in general as distinguished from the movable property described in Article 48. It is nobody's case that the jeep-car was lost or it was acquired by theft or dishonest misappropriation. 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 Article 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 Article 49. This question may not detain me any longer. There is the high authority of the Privy Council in Lewis Pugh Evans Pugh v. Ashutosh Sen, AIR 1929 PC 69 which lays down that Article 48 applies to all conversions whether dishonest or not. 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 thereof also falls into the definition of 'conversion.' 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 Bahadursingh in the year 1958 is not supported by any evidence except the statement of the defendant himself. I have gone through the testimony of D. W. Ramchander and it is not at all convincing in view of the certificate of registration standing in 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 Ramchander thus squarely falls within the definition of 'conversion'. In this view of the matter, it is Article 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.

10. Now, assuming that the plaintiff's 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 25-10-1962. Obviously it is barred by time.

Again, if the plaintiff's 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.

11. It has been laid down by their Lordships of the Supreme Court in K.S. Nanji and Co. v. Jatashankar Dossa, AIR 1961 SC 1474 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, Section 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."

12. With whatever angle the case is viewed, the suit is barred by limitation.

13. 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.

14. The prayer for Leave to Appeal is refused.