R.S. Ramanathan, J.@mdashThe Defendants 1, 3 and 10, are the Appellants herein. The first Respondent/Plaintiff filed the suit seeking for a direction, directing the Appellants and the Respondents 2 to 9, to pay a sum of Rs. 3,60,000/- to her towards past mesne profit and for an appointment of a receiver to maintain and manage the accounts in respect of the income derived from the bus bearing Registration No. T.N.30-Y-1214, plying between Mettur and Velur via., Sangari, so as to enable the first Respondent/Plaintiff to get her 1/3rd share in the profit.
2. The case of the first Respondent/Plaintiff was that one Mr. Khader Sherif, was the owner of the bus holding the plying permit from Bhavani to Kattupudur and he settled the bus permit in favour of his wife Mrs. Fathima Bi, under a settlement deed and during the life time of Fathima Bi, she acquired two more bus permits and totally she was having three bus permits in her name. The said Mrs. Fathima Bi, executed a settlement deed dated 9.6.1975, in favour of five daughters, including the first Respondent/Plaintiff in respect of one bus, bearing Registration No. MDS. 9249. After the death of Mrs. Fathima Bi, on 17.8.1975, misunderstanding arose among the family members and a consensus was arrived at and the members unanimously decided that the bus permits in respect of three buses shall be transferred in the name of the first Appellant/first Defendant, he being the eldest member of the family and he should run the business and share the profits to all his sisters.
3. Thereafter, a suit in O.S. No. 508 of 1976, was filed by Mrs. Pyari John, Mr. Shaifullah Sheriff, Mr. Ziaullah Sheriff, Mrs. Rameeza Begaum, Mrs. Zanvaruth Begaum and Mrs. Rafiqua Begaum, against the first Appellant/first Defendant and two other members for partition and separate possession of the joint properties. In that suit, a compromise was effected between the parties and as per the said compromise, the bus bearing Registration No. MDS. 9313, was allotted to the first Respondent/Plaintiff and Defendants 1 and 2, viz., first Appellant/first Defendant and the second Defendant. Later on, the bus was changed and another bus bearing Registration No. T.N.30-Y-1214 was purchased and the same permit has been used for that bus and as per the compromise, the first Respondent/Plaintiff and Defendants 1 and 2, were enjoying the income from the said bus and the first Appellant/first Defendant also transferred the bus permit in favour of Mr. Y. Khader Moideen, the son of the second Defendant, who happens to be his son-in-law and the transfer of permit in the name of Mr. Y. Khader Moideen is illegal and it is against the compromise decree filed in O.S. No. 508 of 1976 and the first Appellant/first Defendant was enjoying the share of income from the bus till the death of Mr. Khader Moideen and thereafter, the bus permit was transferred in the name of the second Appellant/third Defendant and the first Respondent/Plaintiff was not given her share of income. Hence, the first Respondent/Plaintiff filed the suit for the relief stated above.
4. The first Appellant/first Defendant filed the statement, which was adopted by the Appellants 2 and 3 and the first Appellant/first Defendant denied various averments made in the plaint and stated that the bus permits originally stood in the name of the first Respondent/Plaintiff and later, the first Appellant/first Defendant, second Defendant and the first Respondent/Plaintiff entered into an agreement and as per the agreement, the first Respondent/Plaintiff and the first Appellant/first Defendant relinquished their share in the bus in favour of Mrs. Zaibunisa Begum, viz., the second Defendant in the year 1980 and the bus permit was also transferred in the name of the second Defendant and that was not objected by the first Respondent/Plaintiff. Thereafter, the bus and the permit was transferred in the name of Mr. Y. Khader Moideen and till the death of Mr. Y. Khader Moideen, he was enjoying the income from the bus and thereafter, his legal representatives are enjoying the income and after his death, the permit was also transferred in the name of his wife Kursheeth Begum viz., the second Appellant.
5. It was therefore contended that the first Respondent/Plaintiff is not entitled to claim any mesne profit and No. receiver can be appointed to collect the income derived from the bus, as the first Respondent/Plaintiff has No. title or ownership over the bus and she is not entitled to share any income from the bus.
6. The Trial Court dismissed the suit holding that the first Respondent/Plaintiff did not challenge the permit transferred in the name of Mr. Y. Khader Moideen and thereafter, in the name of his wife, viz., the second Appellant and the first Respondent/Plaintiff did not prove that she was paid income from the bus and when the Appellants have specifically stated that in the year 1980, there was an agreement by which the first Respondent/Plaintiff received her share and therefore, she has to prove that, after 1980 she was receiving income from the bus and it was not proved by her. Hence, the first Respondent/Plaintiff is not entitled to the relief prayed for.
7. The First Appellate Court reversed the findings of the Trial Court and held that the Trial Court erroneously placed the burden of proof on the first Respondent/Plaintiff and the Appellants having pleaded that there was an agreement in the year 1980, under which the first Respondent/Plaintiff was paid her share and she relinquished her right over the bus in favour of the second Defendant, did not prove the same and the first Appellant/first Defendant has given evidence virtually accepting the case of the first Respondent/Plaintiff. Therefore, the first Respondent/Plaintiff has proved that she is entitled to claim share in the bus which is managed by the Appellants and decreed the suit. Hence, this Second Appeal.
8. Mr. V. Raghavachari, the Learned Counsel appearing for the Appellants submitted that the First Appellate Court without properly appreciating the provisions of the Motor Vehicles Act and the fact that the permit was transferred in the name of the second Appellant and the first Respondent/Plaintiff was aware of the transfer of permit by the Competent Authorities under the Motor Vehicles Act and she has not challenged the proceedings and when she attempted to challenge the transfer of permit in favour of the second Appellant, the same was dismissed by the Authorities concerned, as evidenced by Ex.B1. Therefore, as per Ex.B1, first Respondent/Plaintiff has No. right over the bus or permit and as per Section 94 of the Motor Vehicles Act, No. Civil Suit can be filed in respect of the permit granted in favour of any person. Hence, the present suit filed by the first Respondent/Plaintiff is clearly barred u/s 94 of the Motor Vehicles Act.
9. The Learned Counsel appearing for the Appellants further submitted that the suit filed for mesne profit and for an appointment of a receiver, without a prayer for declaration is also not maintainable, as admittedly, the permit was transferred in the name of Mr. Y. Khader Moideen and thereafter, in the name of the second Appellant and without a prayer for declaration that the first Respondent/Plaintiff is entitled to 1/3 share in the bus and the permit, the suit for mesne profit and for an appointment of a receiver to maintain and manage the accounts, is not maintainable.
10. Per contra, the Learned Counsel appearing for the first Respondent/Plaintiff submitted that it is not in dispute that the bus bearing Registration No. MDS. 9313, was allotted to the first Respondent/Plaintiff and the Defendants 1 and 2. There after, for the same permit, another bus bearing Registration No. T.N.30-Y-1214 was purchased, replacing the old bus and the case of the Appellants was that the first Respondent/Plaintiff and the first Appellant/first Defendant relinquished their share in favour of the second Defendant viz., Mrs. Zaibunisa Begum and the first Respondent/Plaintiff was paid a sum of Rs. 12,00,000/- and she also relinquished her right over the bus by executing a released deed and the alleged released deed was not produced. Therefore, in the absence of production of any vital document viz., the release deed, alleged to have been executed by the first Respondent/Plaintiff, it can be presumed that the first Respondent/Plaintiff continued to be the co-owner of the properties, along with the first Appellant and the second Defendant. Hence, the First Appellate Court rightly set aside the findings of the Trial Court and decreed the suit and as rightly pointed out by the First Appellate Court, the first Appellant also admitted the case of the first Respondent/Plaintiff in cross-examination and therefore, the suit filed by the first Respondent/Plaintiff is maintainable and there is No. need to ask for any declaration.
11. On the basis of the submissions made by both the Learned Counsel on either side, the following substantial questions of law arise for consideration in the Second Appeal:
i) Whether the suit is barred under the provisions of the Motor Vehicles Act.
ii)Whether the first Respondent/Plaintiff is entitled to the relief prayed for without praying for the relief of declaration that she has got 1/3rd right in the bus and the permit?
12. It is not in dispute that the first Respondent/Plaintiff and the Defendants 1 and 2 viz., the first Appellant/first Defendant and Mrs. Zaibunisa Begum viz., the second Defendant are the children of Mr. Khader Sherif, along with seven others. It is also admitted that Mr. Khader Sherif, owned the bus permit and thereafter, he settled the bus permit in favour of his wife Mrs. Fathima Bi and during her life time, she acquired two more bus permits. In respect of bus bearing Registration No. MDS .9313 the same was allotted to the share of the first Respondent/Plaintiff and Defendants 1 and 2 and the suit in O.S. No. 508 of 1976, was filed by some of the legal representatives of Mr. Khader Sherif, against the first Appellant/first Defendant, first Respondent/Plaintiff and two other family members for partition and a compromise was effected and as per the compromise, the bus bearing Registration No. MDS.9313, holding plying permit from Mettur to Vellur was allotted to the share of the first Respondent/Plaintiff and the Defendants 1 and 2. Earlier to that, the first Respondent/Plaintiff and the first Appellant/first Defendant and the second Defendant entered into an agreement on 26.2.1997, in respect of sharing of the income from the bus. The compromise decree was marked as Ex.A1, and the decree passed in O.S. No. 508 of 1976 was marked as Ex.A7. The first Appellant/first Defendant while examined as D.W. 1, admitted all the above facts. Therefore, we will have to see whether the first Respondent/Plaintiff is entitled to the relief prayed for.
13. Though the first Respondent/Plaintiff, first Appellant/first Defendant and the second Defendant became the owner of the bus bearing Registration No. MDS .9313, it was admitted by the first Respondent/Plaintiff that the permit was transferred in the name of Mr. Y. Khader Moideen, the son of the second Defendant and son-in-law of the first Appellant/first Defendant. It is also seen from Ex.B1, that by proceedings dated 8.7.1980, the bus permit was transferred from the name of the first Appellant/first Defendant to Mrs. Zaibunisa Begum, the second Defendant by Regional Transport Officer. The first Respondent/Plaintiff did not object to the transfer of permit in the name of Mrs. Zaibunisa Begum, the second Defendant and she challenged the same by filing an application before the Regional Transport Officer, Salem, and the same was dismissed by Regional Transport Officer, as evidenced by Ex.B1. Therefore, we will have to see the effect of Ex.B1, and as contended by the Learned Counsel for the Appellants whether by virtue of Ex.B1, the first Respondent/Plaintiff is entitled to claim any share in the bus.
14. It is admitted by the first Respondent/Plaintiff that after the agreement between herself, the first Appellant/first Defendant and the second Defendant in the year 1977, bus permit was allowed to stand in the name of the first Appellant/first Defendant. The case of the Appellants was that the first Appellant/first Defendant and the first Respondent/Plaintiff relinquished their share in favour of the second Defendant-Zaibunisa Begum and the first Respondent/Plaintiff was paid her share. Though the first Appellant/first Defendant did not produce any proof about the alleged released deed by the first Respondent/Plaintiff, having regard to the fact that the bus permit was transferred in the name of Zaibunisa Begum in the year 1980, would propabalise the version of the first Appellant/first Defendant that the first Appellant/first Defendant and the first Respondent/Plaintiff relinquished their right over the bus in favour of the second Defendant. Admittedly, the first Respondent/Plaintiff did not raise any objection for transfer of the permit in the name of the second Defendant and she raised her objection only in the year 1989 and that was also rejected by the R.T.O., as evidenced by Ex.B1. As per Section 66 of the Motor Vehicles Act, No. owner of a motor vehicle shall use or permit the use of the vehicle as transport vehicle in any public place, whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of the permit granted by the Regional or State Transport Authority.
15. It is admitted by the first Respondent/Plaintiff that the permit of the vehicle was allotted to in the name of the first Appellant/first Defendant and therefore, the bus also stood in the name of the first Appellant/first Defendant and in the year 1980, the permit was transferred in the name of the second Defendant. Section 82 of the Motor Vehicles Act, deals with the transfer of permit and as per Section 82 of the Motor Vehicles Act, permit can be transferred with the permission of the Regional Transport Authority. Section 89 provides for appeals in respect of refusal/revocation/suspension or any variation of the condition of permit and Section 90 deals with revisional power. Section 94 deals with bar of jurisdiction of Civil Courts and as per Section 94, No. Civil Court shall have the jurisdiction to entertain any question relating to the grant of permit under Motor Vehicles Act.
16. As stated supra, the permit issued in the name of the first Appellant/first Defendant was transferred in the name of the second Defendant and that was upheld by the Regional Transport Authority, as evidenced by Ex.B1 and thereafter, it was transferred in the name of Mr. Y. Khader Moideen and after his death, the permit now stood transferred in the name of his wife, viz., second Appellant. Therefore, as per Section 94 of the Motor Vehicles Act, a Civil Court cannot entertain any question relating to the grant of permit under the said Act and the permit granted in favour of the second Appellant has also become final. Once, the second Appellant is a lawful holder of permit, in the absence of any title to the bus or to the permit, the first Respondent/Plaintiff cannot maintain the suit for the relief prayed for.
17. As stated supra, originally, permit was given for the bus bearing Registration No. MDS. 9313 and subsequently, that bus was replaced and another bus was purchased and at present, the bus bearing number T.N.30-Y 1214 is plying with permit. Admittedly, the first Respondent/Plaintiff is not the owner of the bus and permit for the bus was also transferred in the name of the second Appellant. Therefore, in the absence of prayer for declaration of her title to the bus and to the permit, the first Respondent/Plaintiff is not entitled to ask for any mesne profit and also for appointment of a receiver. A person is entitled to ask for mesne profit or for appointment of receiver, when that person has got some right over that property and in this case, though it was pleaded by the first Respondent/Plaintiff that bus was allotted to her along with the Defendants 1 and 2, she admitted that the bus permit was allowed to be transferred in the name of the Appellant/first Defendant and in the year 1980, it was transferred in the name of second Defendant and thereafter, it was again transferred in the name of Mr. Y. Khader Moideen, the husband of the second Appellant.
18. Therefore, when the first Respondent/Plaintiff was aware that the bus and the permit were transferred in the name of the second Appellant, without praying for declaration that she is entitled to 1/3rd right over the bus as well as the permit, she is not entitled to the relief of mesne profit. This aspect was not properly appreciated by the First Appellate Court and the First Appellate Court proceeded on the basis that the first Respondent/Plaintiff was entitled to 1/3 share in the bus, forgetting the fact that the bus permit was subsequently transferred in the name of the first Appellant/first Defendant and the second Defendant and finally, in the name of the second Appellant and hence, without praying for the relief of declaration of her right over bus and the permit, the first Respondent/Plaintiff is not entitled to the relief prayed for. Hence, the substantial questions of law are answered in favour of the Appellants and I hold that as per Section 94 of the Motor Vehicles Act, the permit granted in favour of the second Appellant cannot be challenged in the Civil proceedings and without the prayer for declaration that the first Respondent/Plaintiff is entitled to 1/3rd share in the bus, she is not entitled to the relief prayed for. Hence, the judgment and decree of the First Appellate Court is set aside and that of the Trial Court is confirmed.
19. In the result, the Second Appeal is allowed. In the circumstances of the case, there shall be No. order as to costs. Consequently, connected Miscellaneous Petition is closed.
