Hari.K.V. v. Dr. T.V. Padmanabhan and Muralidharan AV

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 24TH DAY OF JUNE 2019 / 3RD ASHADHA, 1941** ## **RSA.No.931 of 2009** **AGAINST THE DECREE & JUDGMENT DATED 28-07-2009 IN AS 32/2006 OF SUB COURT, HOSDRUG** **AGAINST THE DECREE & JUDGMENT DATED 30-03-2006 IN OS 179/2003 OF MUNSIFF COURT, HOSDRUG** ## **APPELLANT/APPELLANT/DEFENDANT NO.1:** **HARI.K.V., AGED 34 YEARS, S/O.K.P.RAGHAVA PODUVAL,, RESIDING AT KOORANKUNDU, WEST VILLAGE, POST PLACHIKKARA, HOSDURG TALUK, KASARAGOD DIST.** ## **BY ADV. SRI.SURESH KUMAR KODOTH** ## **RESPONDENTS/RESPONDENTS/PLAINTIFF & 2ND DEFENDANT:** **1 DR.T.V.PADMANABHAN, AGED 54 YEARS, S/O.TV RAMAN, CHEMMATTAM VAYAL, BALLA VILLAGE AND POST, KANHANGAD, HOSDURG TALUK, KASARAGOD DISTRICT.** **2 MURALIDHARAN AV, AGED 31 YEARS, S/O.AV KRISHNAN, R/AT.KALICHANADUKKAM, KINANOOR, KARINTHALAM POST, KASARAGOD DISTRICT.** ## **BY ADV. SHRI.JAWAHAR JOSE -R1** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No.931 of 2009 2** ## **JUDGMENT** The first defendant aggrieved by the decree and judgment of both the trial court and the first appellate court came up with this appeal. 2. The suit is one for declaration that the vehicle involved in the suit is owned by the plaintiff. The plaintiff claims title over the property based on Ext.A1 written sale dated 14.6.1994 and Ext.A2 letter of sale to be submitted before the RTO for change of registration of ownership. The agreed consideration was Rs.2,60,000/- out of which an amount of Rs.72,500/received on the date of Ext.A1 sale. Subsequently, the vehicle was taken up by the concerned Magistrate under Section 451 of Cr.P.C and it was given in interim custody to the first defendant, who claims to be the registered owner of the vehicle. Both the trial court and the first appellate court found that the plaintiff is the ## **RSA.No.931 of 2009 3** owner of the vehicle and as such, granted a decree as prayed for, against which this appeal is preferred by the first defendant. 3. The claim of first defendant over the property is based on a sale dated 20.3.2000 from the second defendant who was the registered owner of the vehicle. After the sale, the first defendant effected change of ownership in the register kept by the RTO and in the RC book and transferred the ownership of the vehicle in his name. But the claim of the plaintiff is that prior to the said sale claimed by the first defendant, the second defendant had sold the vehicle to the plaintiff under Ext.A1 on 14.6.1995 for a total consideration of Rs.2,60,000/-. An amount of Rs.72,500/- was received on that day out of the sale consideration of Rs.2,60,000/- after adjusting the loan amount which comes to Rs.1,87,500/- with the State Bank of Travancore. According to the defendant, it is only ## **RSA.No.931 of 2009 4** an agreement for sale and not a sale and no title was passed over to the plaintiff under Exts.A1 and A2 documents. _Inter alia_ execution of Ext.A1 document also disputed by the second defendant. 4. There is a concurrent finding regarding the due execution of Exts.A1 and A2 documents by both the courts below. Being a finding on fact, there cannot be any interference, unless there is perversity or illegality warranting interference. Nothing was brought to the notice of this court in that behalf. 5. It is settled that the construction of a document is also a substantial question of law for invoking the jurisdiction of second appellate court. Going by Ext.A1 document, it is well clear that the entire sale consideration was paid by way of cash and by adjustment towards the liability with the bank. In Ext.A1 agreement it is stated that the vehicle was handed over to the purchaser. **RSA.No.931 of 2009 5** The subject matter of the sale, the goods was delivered over to the purchaser under Ext.A1. Hence, satisfies sale of goods as enumerated under the Sale of Goods Act. Ext.A2 letter signed by the registered owner, the second defendant to be submitted before the RTO for the purpose of change of registration, further shows that the sale has been completed in accordance with the provisions contained in the sale of Goods Act which is well evident from Exts.A1 and Ext.A2 documents. Concurrent finding rendered by both the courts below, hence deserves no interference. The subsequent sale in favour of the first defendant by the second defendant is without having any right, title, interest. No alienable or transferable interest over the movable property, the vehicle in question, was with the 2[nd] defendant and it is not binding on the plaintiff on the vehicle involved in the suit. The defendant has not produced any ## **RSA.No.931 of 2009 6** document in support of their contentions. 6. The learned counsel for the appellant submitted that the suit is one for declaration alone without seeking recovery of possession of the vehicle and took support from Section 34 of Specific Relief Act that on an earlier occasion the concerned Magistrate has exercised the jurisdiction under Section 451 Cr.P.C and took interim custody of the vehicle as there was a complaint filed by the first defendant disputing the ownership of the vehicle. No final adjudication rendered so far by the concerned Magistrate under Section 452 and it is still pending. In the meanwhile, the vehicle was taken on 'kychit' under interim custody by the first defendant, may be based on the change of ownership in RC book of the vehicle is concerned. A mere reading of Section 34 of Specific Relief Act would show that it would operate only when there is an omission to sue for a relief which is associated ## **RSA.No.931 of 2009 7** with the relief of declaration sought by the party provided that it should be a one available to the party concerned as on the date of suit. The exercise of statutory retention of a vehicle under Section 451 and 452 would always stand as subject to the decision of the civil court regarding the ownership of the vehicle and hence it will not come under the purview of Section 34 of the Specific Relief Act. When there is dispute with respect to the property in question as to its ownership or right, title and interest over it, the decision rendered by the Civil Court would bind on the criminal court which are initiated proceedings under Section 451 Cr.P.C. Necessarily, there is no occasion for asking a further relief by way of recovery of possession, as the possession under Section 451 Cr.P.C not amounts to dispossession of property. The learned counsel relied on the principle laid down in _**Public Prosecutor vs.**_ **RSA.No.931 of 2009 8** _**Perumal & another (AIR 1947 Mad. 373), Sundaresa Iyer vs. The Sarvajana Sowkiabivirdhi Nidhi Ltd. (AIR 1939 Mad.853)**_ and _**Deokuer and another vs. Sheopresad Singh and others (1965) 3 SCR 655:AIR**_ _**1966 SC 359),**_ and as such there is no merit in the appeal. None of the question of law raised at the time of admission of appeal involved in the case. Hence, appeal deserves only dismissal, I do so, but without costs. Appeal is dismissed. No costs. Sd/- **P.SOMARAJAN, JUDGE** pm // TRUE COPY // PA TO JUDGE