Rakesh Kumar Garg, J. - (1.) THE plaintiff -respondent filed the instant suit seeking declaration to the effect that he is co -owner of tractor in question along with the defendant in equal share and the defendant has got no right to use it individually, with consequential relief of permanent injunction restraining the defendant from using the said tractor without his consent and also from alienating or disposing of the said tractor and for rendition of accounts for the period 1.6.1995 up to date. In the suit, it was averred that tractor in question was purchased by the plaintiff and the defendant jointly vide receipt dated 14.10.1994. Even the accessories of the tractor were purchased jointly by the parties after spending an amount of Rs. 1 lakh. It was settled at the time of purchase that both the parties will utilise the tractor jointly with the consent of each other and they continued acting on the agreed principles up to 31.5.1995. Thereafter, the defendant kept the tractor in his custody and neither sent it to the plaintiff nor the defendant rendered the accounts. It was further averred by the plaintiff that the defendant was using the tractor for hire purpose and getting the whole income without paying any share to him since 1.6.1995. The said act of the defendant was illegal, null and void and against the agreed terms and conditions. He requested the defendant not to use the tractor individually and to render the accounts and further to pay his share but the defendant refused to admit the claim of the plaintiff and also threatened to alienate the tractor without his consent. Hence, necessity arose to file the present suit.
(2.) UPON notice, the defendant filed written statement raising various preliminary objections. It was denied that the tractor in question was purchased by the plaintiff and defendant jointly. It was further pleaded that the tractor was purchased by the defendant entirely with his own funds. It was further pleaded that one Smt. Rattan Devi had also contributed a sum of Rs. 22,000/ - in the price of the tractor and the remaining amount was contributed by him alone. It was further pleaded that the plaintiff has not contributed any amount towards the purchase price of the said tractor. The accessories were purchased by the defendant and Rattan Devi jointly. It was further pleaded that a cheque of Rs. 69,000/ - dated 4.10.1994 was issued by Smt. Agya Sharma, his wife, favouring the plaintiff drawn on Punjab National Bank, Behrampur and a cheque of Rs. 46,000/ - dated 4.10.1994 was issued by him in favour of the plaintiff and thus, the amount was deposited in his account only to ensure that plaintiff will have interest in the work for plying the tractor. It was further pleaded that after plying the tractor for two months, the plaintiff failed to deposit any amount in his account and misappropriated the funds and had sold Suhaga (the agricultural equipment of the tractor). The plaintiff executed an agreement dated 16.11.1994 vide which he has admitted that he has not contributed any amount in the said tractor and it was further agreed that if he failed to contribute his share of 45% of the said amount of the purchase of tractor then he would not have any right, title or interest in the said tractor. It was further pleaded that the tractor was in the custody of the defendant who was the sole owner. The defendant further pleaded that the plaintiff had failed to contribute his share of 45% as per agreement dated 16.11.1994 and also failed to furnish any account. The name of the plaintiff was inserted in the registration certificate only on the condition that he would contribute his share within one or two months but the plaintiff had committed breach of the terms of the said agreement dated 16.11.1994 and as such he was not entitled to any relief. After hearing the arguments of the counsel for the parties, the trial Court partly decreed the suit of the plaintiff vide judgment and decree dated 8.11.2000 as under: "It is ordered that suit of the plaintiff partly succeeds and partly decreed to the extent that plaintiff is co -owner of tractor No. PB -18 -1925 as described and detailed in the head note of the plaint along with defendant in equal shares and defendant is restrained from using the said tractor individually and alienating the same without the consent of plaintiff. Rest of the suit of the plaintiff being without merits, fails and stands dismissed. The parties are left to bear their own costs."
(3.) AGGRIEVED from the aforesaid judgment and decree of the trial Court, the defendant filed an appeal before the Lower Appellate Court which was dismissed vide impugned judgment and decree dated 17.8.2012. While dismissing the appeal, the Lower Appellate Court observed as under: "After considering the rival contentions of counsel for the parties and perusing the pleadings and evidence on the file as well as law relied upon by the parties, the evidence on the file reveals that the registration certificate of tractor No. PB -18/1925 has been produced on the file. The bill, whereby the tractor has been purchased, has been proved as Exhibit P -1, wherein Amir Chand Saini and Tilak Raj Sharma have been shown as purchaser of the tractor HMT. The delivery challan dated 14.10.1994 relating to the tractor in question is also proved on the file as Exhibit P -2, which is in the name of the parties jointly. Exhibit P -2 shows that the Proprietor of the Tractor Agency has received Rs. 1,10,000/ - from the plaintiff in cash. It has also been established on the record that the receipt of total sale price of the said tractor is in the name of plaintiff and the defendant jointly. The plaintiff has not proved on the file regarding any expenses incurred by him for the purchase of other accessories like Trolley etc. The receipts relating to the accessories are in the name of defendant alone. Though the agreements Exhibit D -1 and Exhibit D -2 have been produced on the file but in these agreements it has been written that the plaintiff Amir Chand, when pay the entire amount to the defendant Tilak Raj and Rattan Devi and when also pay the amount of 45%, then become owner of the tractor but the said agreements are after purchase of the tractor. The tractor has been purchased on 14.10.1994 and Exhibit D -1 and Exhibit D -2 are executed on 16.11.1994. The agreements are not genuine documents as in the documents, the amount of insurance of the tractor is mentioned as Rs. 2600/ -. In the agreements, it is stated that the tractor has been purchased Benami in the name of appellant. The said plea is not available to the defendant as after the Benami transaction Act such plea is not available. From the documents Exhibit P -1, Exhibit P -2, Exhibit P -3 and registration certificate on the file, established that the plaintiff is co -owner of the tractor to the extent of 1/2 share but with regard to the other accessories, he failed to prove the ownership. Hence, such plea is not helpful for him. In the totality of the circumstances on the file, I am of the view that the learned lower Court has rightly decreed the suit of the plaintiff partly. Hence, the judgment under appeal is not required any interference. The citations relied upon by the appellant are not applicable and as such are distinguishable because the facts of the present case are different from the cases cited by the learned counsel for the appellant, whereas the cases relied upon by learned counsel for the respondent are applicable to the case in hand.";