Case Study: Bamadev Panigrahi vs Monorama Raj | Property Law

Equivalent citations: AIR 1974 AP 226

Bench: Kondaiah, Lakshmaiah

Facts of the case

 1. The plaintiff's husband, late Profulla Kumar Raj and the defendant were friends. Plaintiff alleged that his husband had obtained a possessory mortgage on 1-9-1957 with a view to run a touring cinema in that place.

2. Plaintiff’s husband built a temporary cinema structure and erected a temporary pandal in a portion of the site where he bought a cinema projector worth Rs. 16327 and the oil engine and accessories worth Rs 3506.

 3. The aforesaid cinema projector and the oil engine and their accessories have been imbedded and installed in the earth by constructing foundations for the purpose of running the cinema concern known as 'Kumar Touring Talkies'.

 4. Finding no time to manage the cinema concern the entrusted the management of the trust and confidence in him. The defendant taking advantage of his position, as being the person in management, colluded with the Raja Saheb of Mandesa and got an endorsement, of discharge made on the mortgage bond dated 1-9-1957 and subsequently obtained the mortgage in his name on 6-3-1961.

 5. The plaintiff's husband had issued a notice on 5-5-1961 calling upon the defendant to render a correct account of the management of the cinema concern and demanding from him the payment of Rs. 15,000/- previously advanced by him and to deliver possession of the entire cinema concern including the machinery, equipment, records etc., and also the site. The defendant, by his reply dated 2-6-1961, denied has liability either to account for the management of Kumar Touring Talkies or to the return of Rs. 15,000/- alleged to have been advanced by the plaintiff's husband. Though the claim of the plaintiffs' husband was denied categorically by the defendant as early as 2-6-1961, no suit had been filed by him during his lifetime for the recovery of possession of the cinema equipment or for recovery of the amount advanced by him.

 6. Plaintiff's husband got ill in 1963 and remained so till 07-08-1965 when he died.

 7. Plaintiff filed the present suit for declaration that she is the owner of the cinema equipment such a projector and diesel oil engine etc., embodied in the plaint schedule site relating to the cinema concern known as Kumar Touring Talkies, and for directing the defendant to remove the said cinema equipment and deliver the same to the plaintiff, or in the alternative, for recovery of a sum of Rs. 19,833/- being the values of the machinery, with subsequent interest and for costs.

Contentions of Defendant:

 1. Defendant contended that he had obtained the mortgage deed from the Raja of Mandasa though he got the deed executed benami in the name of the plaintiff's husband, that it was he who really obtained the hire purchase agreement from the Commercial Credit Corporation, Madras in the name of the plaintiffs' husband, that he had paid the instalments as per the agreement, that he did to borrow any amount from the plaintiff's husband and that the suit pertains to the recovery of possession of movable property and is, therefore, barred by limitation.

2. Defendant's attempt to obtain a licence in his name from the concerned authorities in his name from the concerned authorities was unsuccessful on account of the attitude of the plaintiff's husband and that there is no merit in the suit.

Trial Court Decision:

 The trial Court held that the cinema equipment as well as the oil engine which were embedded in the earth are immovable property and, therefore, the suit was within the period of limitation, that the suit property really belonged to the plaintiff's husband who had entrusted the management of the cinema concern and the suit premises to the defendant and that it was the plaintiff's husband that entered into the hire-purchase agreement with the Commercial Credit Corporation, Madras. In the result, declaring the plaintiff's husband and after his death, the plaintiff as the owner of the suit property, a decree for the recovery of Rs. 19,388/- was granted to the plaintiff. Hence this appeal.

Contentions made against decision of Trial Court in High court by appellants:

 1. In appeal main contention raised by the appellant was that cinema equipment as well as the oil engine are in the purview of movable property and it was argued that the suit being one related to movable property, should have been preferred within 3 years from the date of the refusal or denial of the plaintiff's claim by the defendant on 2-6-1961 and the present suit filed on July 20, 1966 is, therefore, barred by limitation. 

2. Appellant further contended that plaintiff's husband who was the real owner of the suit property has no claim to the suit property.

Contentions made against appellant’s contention:

 Property was immovable and hence within the limitation period as for immovable property time period is 12 years.

Legal Issues:

 (1) Whether, on the facts and in the circumstances, the suit for the recovery of possession of the cinema equipment, and the diesel oil engine and their accessories or, in the alternative, for recovery of their value, is barred by limitation as pleaded by the defendant?

(2) Whether the plaintiff's husband and after his death, the plaintiff is entitled to the cinema equipment and the diesel oil engine and their accessories?

Observation and Judgement of Court:

1. Court observed the following for the purpose of determining whether the cinema equipment such as cinema projector and diesel oil engine in question is movable or immovable property:

"The cinema concern is a touring talkies. It is not a pucca cinema hall, but it is only a temporary shed build partly with zinc sheets and partly with oil cloth. The cabin portion is built with zinc sheets and the remaining intent is covered with oil cloths. The cinema concern, as its very name "Kumar Touring Talkies" indicates, is a temporary concern. "

"The claimant of the touring talkies, be it the appellant or the respondent's husband, must be held to be a usufructuary mortgagee of the land belonging to the Raja of Mandasa."

"On a careful consideration of the entire facts and circumstances, we are of the firm view that the intendment, object and purpose of installing the cinema equipment in question, was only to have the beneficial enjoyment of the very equipment during the period of the lease or mortgage. That apart, the diesel oil engine and the cinema projector are not rooted in the earth as in the case of trees and shrubs, or imbedded in the earth as in the case of walls or buildings, or attached to what is so imbedded for the permanent beneficial enjoyment of that to which they are attached. In the circumstances, the equipment or machinery must be held to have not been attached to the earth within the meaning of the expression "attached to the earth" under Section 3 of the Transfer of Property Act. The machinery is not only not attached to the earth, but also not permanently fastened to anything attached to the earth. Hence, the machinery in question must be held to be movable property but not immovable property. On that premise, it must be held that the suit for the recovery of possession, or in the alternative, for recovery of the value of such movable property, beyond the period of three years after the denial by the defendant of the plaintiff's right, is barred by limitation."

 Judgement:

Court held that declaration sought for by the plaintiff is only in respect of movable property but not immovable property. Hence, plaintiff has no edges to stand. The suit must have been filed within three years from the date of the refusal or denial by the defendant of the right of the plaintiff's husband to the suit property. 

We may also add that the conduct of the plaintiff in not filing the suit within three years after the denial of her right to the suit property by the defendant, is a material factor to be taken into consideration factor to be taken into consideration. For all reasons stated, question No. 1 is answered in the affirmative and in favour the appellant.

In view of our finding that the suit is barred by limitation, we do not find it necessary to advert to question No. 2 relating to the ownership of the property. In the result, the appeal is allowed setting aside the judgment and decree of the Court below, with costs throughout.


Summary by - Tushar Bawa

 

 

 


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