PROPERTY LAW

BAMDEV PANIGRAHIAPPELLANT V MONORAMA RAJ.................RESPONDENT

AIR 1974 ANDHRA PRADESH 226

FACTS
Plaintiffs husband, Profulla Kumar Raj and defendant were friends. Profulla Kumar Raj obtained possessory mortgage of a site from Raja Saheb of Mandasa with a view to run a touring cinema in that place. Plaintiffs husband also purchased a cinema projector, diesel oil engine and associated accessories under a hire purchase agreement with the Commercial Credit Corporation in order to run a cinema concern known as Kumar Touring Talkies. Finding no time to manage, plaintiffs husband entrusted the cinema concern to the defendant out of trust and confidence. Defendant taking advantage of the situation, colluded with the Raja Saheb of Mandasa and got the mortgage in his name. Plaintiffs husband when asked for the accounts of his cinema concern, the defendant denied his liability to account for the management of the Kumar Touring Talkies. This happened in 1961.

TRIAL COURT
Plaintiff, in 1965 after the death of her husband instituted a suit against the defendant declaring that she is the owner of the cinema equipments and that she wanted the delivery of the same or she wanted a sum of Rs.19,833 being the value of the machinery with subsequent interest and for costs. Defendant said that it was he and not the plaintiffs husband who is the real owner of the cinema concern and that it was he who got the mortgage deed from the Raja Saheb of Mandasa in the name of plaintiffs husband. He also said that he only got the hire purchase agreement from the Commercial Credit Corporation in the name of her husband and that he had paid the instalments according to the agreement. Defendant also said that the suit pertains to the recovery of possession of movable property and is therefore barred by limitation. JUDGEMENT- The Trial Court framed as many as 16 issues . On consideration, the Trial Court found that the cinema equipment as well as the oil engine were imbedded in the earth and are immovable property and thus the suit was within the period of limitation.

 Trial Court found that the suit property really belonged to the plaintiffs husband and it was he who entered into the hire purchase agreement, thus declaring the plaintiffs husband and after his death, the plaintiff as the owner of the suit property. A decree for recovery of Rs.19,833 was granted to the plaintiff. Defendant went in appeal to the High Court HIGH COURT Issues Raised: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 plaintiffs husband and after his death, the plaintiff is entitled to the cinema equipment and the diesel oil engine and their accessories?

SECTION 3-TRANSFER OF PROPERTY ACT,1882

Section 3 tells that immovable property does not include standing timber, growing crops or grass. It also talks about things attached to the earth which means i. rooted in the earth, as in the case of trees and shrubs; or ii. imbedded in the earth, as in the case of walls or buildings; or iii. attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached. JUDGEMENT AND REASONING GIVEN BY THE HIGH COURT After reading the statutory definitions, the Court was of the view that the enquiry should not be whether the attachment is direct or indirect, but what the nature and character of the attachment and the intendment and object of such attachment are. The Honble Court also tried to look into the tests enunciated by the decided cases which were as follows:I. What is the intendment, object and purpose of installing the machinery, that is whether it is beneficial enjoyment of the building, land, or structure or the enjoyment of the very machinery.

II. The degree and manner of attachment or annexation of the machinery to the earth . Following observations were being done by the Court: The property belonged to the Raja Saheb of Mandasa and thus the plaintiff or the defendant had no interest in the development of the land or the said property. Further the establishment of the machinery in a temporary shed or tent showed that the plaintiffs intension was only the beneficial enjoyment of the machinery and not the building. The Court thus came to the conclusion that the plaintiffs husband, who installed the cinema equipments on the land of Raja Saheb of Mandasa, during the lease period must have intended to have only enjoyment of the cinema equipment. The Court also said that 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 and buildings as mentioned in section 3 of the transfer of property act, 1882. Hence the machinery in question must be held to be a movable property and not immovable.

 Thus the Court said that this submission of the plaintiff has no legs to stand as this suit should have been filed within 3 years of refusal or denial by the defendant of the right of plaintiffs husband. The Court was of the view that as the suit is itself barred by limitation, Court does not feel it necessary to answer issue no.2. Hence the appeal was allowed and the Court set aside the judgment and decree of the Court below.