Sivarman v. State of Kerala and others (SA No. 242 of 1999(D))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **WEDNESDAY, THE 2ND JUNE 2010 / 12TH JYAISTHA 1932** **SA.No. 242 of 1999(D)** **------------------------------** **AS.26/1997 of SUB COURT,THODUPUZHA OS.129/1989 of MUNSIFF COURT,THODUPUZHA** **....................** ## **APPELLANT(S): RESPONDENT/ PLAINTIFF** **----------------------** **SIVARAMAN, S/O. PARAMU, AGED 62 YEARS, PARAYIL HOUSE, KALIYAR VANNAPPURAM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** ## **BY ADV. SRI.JOSHI N.THOMAS** ## **RESPONDENT(S): APPELLANT/DEFENDANT** **------------------------** **1. STATE OF KERALA REP.BY THE DISTRICT COLLECTOR, IDUKKI.** **2. THE JOINT REGIONAL TRANSPORT OFFICER, MUVATTUPUZHA.** **3. THE DEPUTY TAHSILDAR, REVENUE RECOVERY, THODUPUZHA.** ## **GOVERNMENT PLEADER SMT.REKHA C.NAIR** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **P.BHAVADASAN, J.** ------------------------------------SA No.242 of 1999 ------------------------------------Dated 2nd June 2010 ## Judgment For recovery of the arrears of vehicle tax due for the period from 01.10.1987 to 31.03.1989 in respect of a lorry bearing Registration No.KLE 413, steps were initiated against the plaintiff. 2. The plaintiff claims that he had sold the vehicle to a third party as per Ext.A7 agreement dated 17.08.1987 and that he was not in possession of the vehicle after the date of Ext.A7. It is claimed that the tax arrears are subsequent to the date of Ext.A7 and therefore, he is not liable to pay any tax. On the above grounds, the suit was laid. 3. The suit was resisted by the defendants, pointing out that the plaintiff had not taken the statutory steps necessary, for effecting transfer of the vehicle and the person to whom, he had claimed to have sold the vehicle, could not be traced. As per the records, the plaintiff continues to be in possession of the SA 242/99 2 vehicle and therefore, he is liable to pay the vehicle tax, it was contended. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A7 from the side of the plaintiff. The defendants examined DW1 and had Ext.B1 marked. The Trial Court was of the view that it was for the defendant to prove that the plaintiff was still in possession of the vehicle and since they have not done so, the plaintiff was not liable to pay any tax and accordingly, decreed the suit. 5. The defendants carried the matter in appeal as AS No.26/1997 before the Sub Court, Thodupuzha. The Appellate Court reversed the Judgment and decree of the Trial Court and dismissed the suit, finding that the plaintiff was admittedly in possession of the vehicle from November 1986 till 17.08.1987 and there was no acceptable evidence to establish that the plaintiff had sold away the vehicle. It is SA 242/99 3 the said Judgment and decree that is assailed in this Second Appeal. 6. The following questions of law are formulated in the Second Appeal : _''a) Whether the finding of the lower Appellate Court holding that the appellant was bound to inform the registering authority is legal ?_ _b) Is the decision of the lower Appellate Court is legal to the extent of accepting oral testimony regarding postal intimation as facts relevant without material evidence ?_ - _c) Is the decision of the lower Appellate Court is legal in fastening the liability on an innocent person under Sub Section (3) of Section 3 of Kerala Motor Vehicle Taxation Act on the basis of surmises alone without appreciating the evidence in accordance with law ?_ SA 242/99 4 _d) Is the decision of the lower Appellate Court is legal in disregarding material evidence ?_ _e) Is the decision of the lower Appellate Court is legal on drawing conclusion drawn on facts proved as wrong ? ''_ 7. The learned counsel for the appellant pointed out that the lower Appellate Court was not justified in reversing the Judgment and decree of the Trial Court. 8. The Trial Court, after elaborate consideration of the evidence adduced in the case, had come to the conclusion that the plaintiff was not in possession of the vehicle during the relevant period and so, he was not liable to pay vehicle tax. The Trial Court has accepted the reason and found that the vehicle was transferred by the plaintiff. 9. According to the learned counsel for the appellant, the lower Appellate Court has misdirected itself, both on facts and on law and was not justified in finding otherwise. Ext.A7 is clear to the effect that the vehicle had SA 242/99 5 been transferred to a third party and the liability that had accrued was after the period of transfer of the vehicle. Therefore, according to the learned counsel, the plaintiff could not be said to be either in possession or in control of the vehicle and if that be so, he is not liable to pay the tax due for the said period. The learned counsel also pointed out that the lower Appellate Court was not justified in discrediting the evidence adduced by the plaintiff on untenable grounds. According to him, the approach of the lower Appellate Court has resulted in miscarriage of justice. 10. Quite contra, the learned Government Pleader pointed out that the lower Appellate Court has considered the issue in the right perspective and has come to the right conclusion. It was for the plaintiff to prove that the vehicle had been transferred and having failed to do so, he is liable under the statutes to pay vehicle tax. Attention of this Court was drawn to the fact that even though the Transport authorities tried to trace the person to whom the SA 242/99 6 vehicle was said to have been sold by the plaintiff, they were unable to do so. There was also nothing to show that there was, in fact, a transfer of the vehicle to a third party. The learned Government Pleader also referred to Ext.A7 agreement and pointed out that the transaction is not yet complete and certain amounts are yet to be received by the plaintiff in respect of the sale of the vehicle. It is also submitted by the learned Government Pleader that it was incumbent on the part of the vendee as well as the vendor to inform the Transport authorities regarding the transfer of the vehicle and having not done so, the plaintiff cannot be heard to say that he is not liable to pay tax. 11. There seems to be some substance in the submissions made by the learned Government Pleader. It is true that the plaintiff has produced Ext.A7 agreement. The agreement is dated 17.08.1987. The sale was for a consideration of Rs.14,500/-. As per Ext.A7 agreement, an amount of Rs.9,000/- was paid and the balance amount of SA 242/99 7 Rs.5,500/- was yet to be paid. It is clear from the evidence that the vehicle documents were not handed over to the vendee. There is no dispute regarding the fact that till the notice of demand was served on the plaintiff, he had not informed the Transport authorities about the so-called transfer of the vehicle. There is nothing also to show that the balance amount as shown in Ext.A7 has been paid and the vehicle documents had been handed over to the vendee under Ext.A7 agreement. Moreover, DW1 has clearly stated that after coming to know from the plaintiff that the vehicle was transferred, he had tried to trace the person to whom the vehicle was said to be sold by the plaintiff, but he was not successful in doing so. The letter addressed to him was returned with the endorsement 'unknown'. 12. As rightly noticed by the lower Appellate Court, the burden was on the plaintiff to prove that he was not in possession of the vehicle at the relevant time. It was for him to show that he had neither the possession nor any SA 242/99 8 control over the vehicle. The lower Appellate Court considered Ext.A7 and came to the conclusion that it is open to serious doubts. At any rate, there is no justification for the plaintiff in not informing the Transport authorities when the transfer was effected. As already noticed, the intimation of transfer was made only when he received the notice for payment of arrears of vehicle tax. The transport authorities had tried to get in touch with the person, to whom the vehicle was said to be sold by the plaintiff, but they were not successful in doing so and the letter addressed to the said person had returned with the endorsement - ''there is no such person in the locality''. When the transfer itself is not proved, it is presumed that the plaintiff continued to be in possession of the vehicle. 13. The learned counsel for the appellant relied on the decision of this Court in **Paramu Vijayasree v. Paramu Jayaprakash** (1999(3) KLT 343) and submitted that on law and on facts, interference by this Court with the SA 242/99 9 judgment and decree of the lower Appellate Court is warranted. Special reference was made to paragraph 6 of the said decision, which is quoted below for convenient reference : ''The lower Appellate Court addressed a question to itself, whether the agreement evidenced by Ext.A1 is true ? While examining this question, it also considered the plaintiff's case that as per Ext.A1 possession was handed over to the plaintiff and the plaintiff was put in possession of the property. The lower Appellate Court also understood that same is the evidence adduced by the plaintiff in this aspect. But the lower Appellate Court came to the conclusion that even though the plaintiff is having such a case viz. that the plaintiff is put in possession of the property, no such averment is seen made in Ext.A1. But the last sentence in Ext.A1 written in SA 242/99 10 ## vernacular is that - (the possession of the property is given to you from this day, agreed so) Thus, there is unequivocal statement in Ext.A1 that possession had been given to the plaintiff. It seems that the lower Appellate Court did not show the patience to read it fully till its end. It was an erroneous approach. The lower Appellate Court only noticed the right conferred in Ext.A1 to the plaintiff in case refusal by the first defendant to execute the document in terms of Ext.A1 agreement, that in such a case the plaintiff will be entitled to approach the court and get possession of the property through court. That recital is only with regard to remedy in case of default of the agreement and it has nothing to do with the factum of change of possession as SA 242/99 11 - agreed to in Ext.A1. After having noticed the earlier portion it seems that the appellate court stopped the reading of Ext.A1 and thus omitted to notice the last sentence which unambiguously recites that the possession had been handed over to the plaintiff. It was thus the lower Appellate Court has come to the conclusion and the finding that Ext.A1 agreement was not truly executed and it did not speak about the passage from the - 1[st] defendant to the plaintiff. Thus, there was essentially an erroneous approach to the relevant fact which shall be corrected in terms of the decision of the Supreme Court in **Jagdish Singh v. Natthu Singh** (AIR 1992 SC 1604) as it is a real question of law as held by the Privy Council in **S.Rahmath Ilahi v. M.H.Khan & ors.** (IAR 1943 PC 208).'' SA 242/99 12 14. The question is whether the decision is applicable to the facts of this case. The lower Appellate Court has independently considered the evidence and found that there was no evidence adduced to show that the transfer of the vehicle was established. The lower Appellate Court also found that the statutory requirements have not been complied with by the plaintiff. The lower Appellate Court also relied on the decision in _**Basheer v. State of Kerala**_ (1997(2) KLT 155). 15. The lower Appellate Court was justified in pointing out that the burden was on the plaintiff to establish his case and having not done so, he was liable to pay tax. Section 3 of the Motor Vehicle Taxation Act is a deeming provision which fastens the liability on the registered owner or any person having possession or control of a motor vehicle, to pay vehicle tax. When notice was issued to the registered owner, he informed that the vehicle SA 242/99 13 was sold to the plaintiff. The plaintiff admitted that he was in possession of the vehicle but says that he had disposed of it to a third party under Ext.A7 agreement. However, he was unable to establish that the vehicle has been sold under Ext.A7 agreement. One may notice that the balance amount shown in Ext.A7 has not been received by the plaintiff. There is absolutely no evidence also to show that the plaintiff had taken any steps to inform the Transport Authority regarding the transfer of the vehicle. Even according to his evidence, only after he received the demand notice, he informed the Transport Authorities regarding the transfer of his vehicle. Under such circumstances, if the lower Appellate Court felt that the plaintiff is liable to pay tax, the Court cannot be found fault with. The lower Appellate Court was justified in ordering so. 16. The result is that no substantial questions of law arise for consideration in this appeal. This appeal is SA 242/99 14 devoid of any merits and it is accordingly dismissed. There will be no order as to costs. **P.BHAVADASAN, JUDGE** sta SA 242/99 15