BAMADEV PANIGRAHI Vs. MONORAMA RAJ

JUDGEMENT

(1.) This appeal by the defendant is directed against the judgment and decree of the Additional Subordinate Judge, Srikakulam, in O. S. No. 76 of 1966 decreeing the plaintiffs suit for the recovery of a sum of the equipment of a cinema concern known as Kumar Touring Talkies.

(2.) The material facts leading to this appeal may briefly be stated : The plaintiffs husband, late Profulla Kumar Raj and the defendant were friends. According to the plaint allegations, the plaintiffs husband had obtained a possessory mortgage. On 1-9-1957 from the Raja of Mandasa on 1-9-1957 from the Raja of Mandasa in respect of a site measuring about Ac. 3-51 cents known as Pula Thota which contains a bunglow in it, for a sum of Rs. 4,000.00 with a view to run to cinema in that place. Profulla Kumar Raj, the plaintiffs husband, advanced from the year 1952 till the end of 1959 various sums amounting to Rs. 15,000.00 to the defendant to meet his obligations under forest contracts which he had entered into with the Raja Seheb of Mandasa. The plaintiffs husband built a temporary cinema structure and erected a temporary pandal in a portion of the plaint schedule site. For the purpose of the plaint schedule site. For the purpose of the cinema, the plaintiffs husband purchased under a hire purchase agreement dated 17-2-1958 a cinema projector and its accessories under an agreement with the Commercial Credit Corporation, Madras, for a sum of Rs. 16,327/-. On the same day, he purchased a diesel amount of Rs. 3,506.00. 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. 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. The plaintiffs 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. 15,000.00 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. 15,000.00 alleged to have been advanced by the plaintiffs 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. However, the plaintiffs husband filed a suit, O. S. No. 124 of 1961, on the file of the District Munsif Sompeta, for the recovery of the mortgage amount of Rs. 4,000.00 against the Raja of Mandasa and the defendant. That suit was decree ex parte and the proceedings to set aside the ex parte decree are said to be pending in this High Court.

(3.) As the plaintiffs husband was sick in 1963 and continued to be so till 7-8-1965 when he died, the plaintiff filed the present suit for declaration that she is the owner of the cinema equipment such a projector and diesal 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. 19,833.00 being the values of the machinery, with subsequent interest and for costs. The suit claim was resisted by the defendant contending inter alia that it was he, but not the plaintiffs husband , who is real owner of the Kumar Touring Talkies, that he had obtained the mortgage deed from the Raja of Mandasa though he got the deed executed benami in the name of the plaintifs 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 plaintiffs husband and that the suit pertains to the recovery of possession of movable property and is, therefore, barred by limitation. It is further stated that the defendant removed the equipment, machinery, projector etc. in December, 1961, and January, 1962, that his attempt to obtain a licence in his name from the concerned authorities in his name from the concerned authorities was unsuccesful on account of the attitude of the plaintiffs husband and that there is no merit in the suit.