K.S. Lodha, J.
1. This is a plaintiffs' appeal against the order of the learned District Judge. Jodhpur, dated 25-9-81 dismissing his application under Order 39 Rules 1 and 2 C.P.C. read with Section 151 C.P.C. The facts giving rise to this appeal briefly stated are that the plaintiffs Dalpatsingh and Babulal filed a suit for declaration that the tractor RSG 2276 and trolley RRQ 2386 are of their ownership and possession. They also prayed that a permanent injunction restraining the defendants from interfering with the plaintiffs' possession over the said tractor and trolley or to dispossess them. Along with the plaint, the plaintiffs also moved an application for temporary injunction. The case of the plaintiffs is that the plaintiffs had purchased the tractor and trolley from M/s Gulabchand Govindram and the registration of these vehicles was affected in the names of the plaintiffs. They were in possession of these vehicles and the defendants Om Prakash and Kunaram took the tractor and the trolley from the plaintiffs on loan for taking out their machine, which had fallen in to the well, a few days before 28-2-80. The vehicles were not returned by the defendants and, therefore, the plaintiffs called upon them to do so but they refused to do so on 27-2-10. Thereupon, the plaintiffs instituted proceedings Under Section 406 IPC against the defendants before the Judicial Magistrate No. 2, Jodhpur, on 28-2-80. During the course of these proceedings, the tractor and trolly were surrendered by the defendants before the police and they were handed over to the plaintiffs on 'Supurdgnama' but by an order of this Court dated 22-4-81, the vehicles were ordered to be handed over to the defendants on 'Supuidginama'. The matter was taken to the Hon'ble Supreme Court. Meanwhile, the present suit for declaration and permanent injunction was filed and, therefore, the Hon'ble Supreme Court by its order dated 21-9-81 directed that the tractor and trolley would remain in possession of the plaintiff till some order in this respect is passed in the suit. The plaintiffs apprehended that the defendants may dispossess them from the aforesaid vehicles and, therefore they wanted this temporary injunction. The case of the defendants, on the other hand, was that the tractor originally belonged to Chand Ratan and Chand Ratan had sold the same to them for the Tractors(Distribution and Sale Control)Order, 1971, Chandratan could not have executed a sale deed in favour of the defendants and, therefore, for a sum of Rs. 47,500/-. However, in view of the provisions of the Tractors (Distribution and Sale Control) Order, 1971 Chand Ratan could have executed a sale deed in favour of the defendants and therefore he he handed over a blank sale letter to the defendants. The defendants had obtained a loan of Rs. 50,000/- from Gulab Chand Govind Ram and had handed over the documents relating to the tractor as also the trolley, which belonged to them, to Gulab Chand Govind Ram. It appears, according to the defendants that the plaintiffs in collusion with Gulab Chand Govind Ram got the registration of these vehicles transferred in the names of the plaintiffs. It was also their case that they had got Gulab Chand Govind Ram paid Rs. 31, 000/- in cash from the plaintiffs and had also got an agreement executed by the plaintiffs in their favour on 30-6-79. They denied that the plaintiffs were ever in possession of these vehicles. They asserted that they had been throughout in possession of these vehicfes and had plied them on hire etc. for which they have produced the receipts and certificates. They, therefore, urged that the plaintiffs were into entitled to any temporary injunction specially in view of the orders passed by this Court in the criminal proceedings. After taking into consideration the rival contentions and the documents produced by the parties, the learned District Judge came to the conclusion that although the registration of the tractor and trolley in question were in the names of the plaintiffs, they could not be deemed to be the owners and in possession thereof due to certain circumstances, which he has pointed out in his order. He, accordingly, found that there was no prima facie case in favour of the plaintiffs. He was also of the opinion that as the plaintiffs had obtained the possession of the tractor and trolley by recourse to improper criminal proceedings Under Section 406 I.P.C., the balance of convenience was also not in favour of the plaintiffs. However, he was of the opinion that the fact of irreparable injury appeared to be in favour of the plaintiffs because when the registration of these vehicles stand in their names, they may be held liable for breach of the provisions of the Motor Vehicles Act etc. In view of these findings, be refused the plaintiffs' prayer for grant of temporary injunction by his order dated 25-9-81. The plaintiffs have, therefore, come up in this appeal.
2. I have heard the learned counsel for the parties and have gone through the record.
3. The learned counsel for the appellants has assailed the order of the learned District Judge on the ground that in arriving at the finding that the plaintiffs had no prima facie case, the learned Judge has ignored the provisions of the Motor Vehicles Act and has taken into consideration in admissible evidence and, therefore, his findings are vitiated. On the other hand, the learned counsel for the respondents has not only supported the findings of the learned District Judge but has further urged that in matters of grant or refusal of temporary injunction, the appellate court should not interfere with the discretion exercised by the trial court. I have given my careful consideration the rival contentions. So far as the question of interference in appeal with the discretion of the trial court goes, the learned counsel for the non-petitioners has relied upon Apsara Hotels (P) Ltd., Delhi v. Rajputana Hotels (P) Ltd, Jaipur A.I.R. 1981 NOC 201 Raj., Musa v. Badri Prasad 1953 R.LW. 416 and Smt. Vimla Devi v. Jang Bahadur . It may at once be stated that there can be no controversy with the proposition that ordinarily the appellate court would not interfere with the discretion exercised by the trial court in the matter of grant or refusal of temporary injunction but even according to the authorities relied upon by the learned counsel for the respondents, such interference is called for and justified if the lower court acts arbitrarily or perversely or capriciously or in disregard of established legal principles. Therefore, it will have to be seen whether in this case, as urged by the learned counsel for the appellants, the learned trial court has ignored the relevant provisions of law under the Motor Vehicles Act and has taken into consideration inadmissible evidence because if this is so, then according to the authorities relied upon by the learned counsel for the respondents himself, this Court would be justified in interfering with that discretion. I shall, therefore, immediately advert to the findings and observations of the learned District Judge.
4. It may at once be stated that the learned District Judge has started with the presumption, and, in my opinion, rightly that a person in whose favour the registration of a motor vehicle stands should ordinarily be presumed to be its owner unless otherwise proved or someone else is able to establish a better title. The learned counsel for both the parties referred to certain authorities on this aspect of the matter but I do not refer to them because the ratio decendi of all these authorities is undoubtedly as stated by the learned District Judge. The question which, therefore, immediately falls for determination is whether this presumption can be said to have been rebutted in the present case. The learned District Judge has of course found that this presumption appears to have been rebutted and, therefore, we have to consider whether this finding of the learned District Judge is proper and in accordance with law.
5. Before embarking upon the consideration of this finding, I may state that a detailed and critical examination of the evidence at this stage is neither possible nor advisable. Such a course can be adopted only at the final disposal of the suit itself, and, therefore, we have to examine the material on record available at present only prima facie. The factors which weighed with the learned District Judge in arriving at this finding can be summarised below:
(i) That the original owner of the tractor was Chand Ratan but he has not been produced by either party nor his affidavit has been filed but a copy of his statement Under Section 161 Cr.P.C. has be en placed on record in which he has denied the sale in favour of Gulab Chand Govind Ram.
(ii) That the defendants have produced an agreement said to have been executed by Chand Ratan in their favour on 17.6.76, along with a photo stat copy of blank sale letter.
(iii) That the defendants allege to have taken a loan from Gulab Chand Govind Ram and handed over the papers to him and thereafter they got Gulab Chand Govind Ram paid off through plaintiffs.
(iv) That the plaintiffs in the plaint originally state that they had purchased the tractor and trolley for a sum of Rs. 50,000/- from Gulab Chand Govind Ram but then this statement was struck off and that creates a doubt about the plaintiffs' case.
(v) That the defendants have also produced an agreement alleged to have been executed by the plaintiffs in their favour on 30.6.79 admitting there in that they had obtained the documents from Gulab Chand Govind Ram.
(vi) That the defendants have been in possession of the tractor and trolley since 1976 as they have produced the account of expenses in their diary as also the receipt of the Gram Panchayat for having taken the tractor and trolley on hire from the defendants as also a certificate from the Sar parch, Gram Panchayat, Nibol, and,
(vii) That the plaintiffs have failed to prove that the defendants had taken the tractor and trolley on loan from them.
6. A careful consideration of these circumstances would go to show that the learned District Judge could not be said to have properly and legally taken them into consideration e.g. the statement of Chand Ratan recorded Under Section 161 Cr. PC, copy of which was produced by the defendants wodld not have been admissible in evidence in the civil proceedings, similarly, the agreement by Chand Ratan in favour of the defendants on 17.6.76 which has yet to be proved could not have been made use of at this stage and the plaintiff was not bound by it specially when awarding to the learned District Judge himself, Chand Ratan had not been called in evidence nor his affidavit has been filed by either of the parties. So also is the case with the blank sale letter. It is also yet to be proved. The mere production of a photo stat copy of that document is no proof of that document. Again the fact that the defendants paid off Gulab Chand Govind Ram by taking loan from the plaintiffs and by virtue of the agreement dated 30.6.79 is a fact not admitted by the plaintiffs as such and is alleged to be a forgery. Therefore, unless the execution of this argreement by the plaintiffs is established, it cannot be used against them at this stage. The fact that the defendants had been in possession of these vehicles since 1976 is said to have been supported by the account kept in the diary of the defendants as also by certain receipts and certificates of the Gram Panchayat. That evidence in itself is not conclusive to establish the defendants' possession and the plaintiffs case at this stage cannot be negatived on this score. The alleged correction in the plaint also cannot give rise to an adverse inference. The last Circumstances used by the learned District Judge, namely, that the plaintiffs have failed to establish that the tractor and trolley were taken on loan from them by the defendants is also of the same nature. The evidence is yet to come on record and, therefore, in my opinion, on these presumptions, the learned District Judge could not have come to the conclusion that the plaintiffs have failed to establish a prima facie case. On the other hand, admittedly the registration of these vehicles stand in the names of the plaintiffs. They can be said to be prima facie the owners of these vehicles. It is, therefore, clear that the finding of the learned District Judge in respect of prima face case is not based on sound legal principles. Again the question of prima facie case does not necessarily mean that the plaintiff must be able to establish his title over the disputed property at this stage. All that the plaintiff has to establish is that there is a serious question, to be tried in the suit. The learned counsel for the respondents laid much stress on the orders of this Court in the criminal proceedings by which the tractor and trolley were ordered to be handed over to the defendants on 'Supurdginama' and urged that in the face of this order the plaintiffs are not entitled to retain the possession of the vehicles. It may at once be stated that the judgment of a criminal court be it a High Court is relevant only for the limited purposes of showing that such a criminal proceedings had been initiated and had resulted either in acquittal or conviction of the party concerned but the findings of the criminal court are neither admissible nor relevant. In this connection, reference may be made to Anil Behari v. Smt. Latika Bala Dassi : 2SCR270 as also to Onkarmal v. Banwarilal . The learned counsel for the respondents referred to the following authorities for supporting his contention that the judgment on the criminal proceedings in respect of these vehicles is admissible and relevant.
7. Ambika Parsad v. Ram Ekbal Rai AIR 1966 SC 605, Amar Singh v. Major Singh 1978 ACJ 438,Vinobabai v. K.S.R.T.C. 1979 ACJ 282 and A.B.Sarma v. H.T.Singh AIR 1973 Gauhati 38 It may at once be stated that the first three authorities are not at all relevant and I need not refer to them in detail. In the Gauhati case' it was of course observed 'But, such judgment is admissible, in my opinion, under Section 13 of the Evidence Act, as evidence of a particular instance in which the right was claimed.' Further this observation also appears to be qualified by the other observations of the learned single Judge of that Court. He has observed that there can be no two opinions that a previous judgment in a criminal case can be used only for the limited purpose, as mentioned in Anil Behari's case (supra) He further observed that this, no doubt, cannot be a proof of the fact mentioned in the recital but it can be looked into alongwith other evidence for Whatever worth it may be, in my opinion. The learned Judge further referred to Gobind Chandra v. Upendra Padhi : AIR1960Ori29 , wherein it was observed as under:
It is not that the judgment of the Criminal Court has to be ignored altogether but it should not be relied upon as conclusive for deciding the civil suit for malicious prosecution. A Civil Court has to go into the matter on the evidence adduced before it in the civil suit independently of the view expressed by the Criminal Court.
8. Thus it clearly appears that even according to this view, the findings of the criminal court are not of any avail in the civil proceedings. It may be added that in any case in view of the decision of the Hon'ble Supreme Court and our own High Court referred to above, much importance cannot be attached to the decision of the Gauhati High Court for whatever value it may have.
9. On the question of balance of convenience, the learned District Judge has observed that since the plaintiffs had obtained possession of the tractor and trolley by recourse to criminal proceedings in which the plaintiffs ultimately failed and their allegations were not found to be correct the balance of convenience cannot be said to be in their favour. Here again the Seamed District Judge appears to have committed same mistake in relying upon the findings of the Criminal Court. Merely because the plaintiffs had failed in the criminal case and a final report had been filed, it cannot be concluded that the case of the plaintiffs was false or altogether untenable. This is one thing to say that the case has not been proved and it is quite another to say that the case was false. It is true that at present there is no definite evidence about the defendants' taking the tractor and trolley on loan from the plaintiffs but when the registration of the tractor and trolley stand in the names of the plaintiffs, they must be presumed to be in their possession and in these circumstances, it is for the defendants to establish how they happened to come in possession there of. Section 26 of the Motor Vehicles Act provides for the production of the motor vehicle before the registering authority before the registration and, therefore, it can safely be presumed that when the registration of these vehicles was made in favour of the plaintiffs, they must have been in the possession thereof and produced them before the registering authority. Therefore, the learned District Judge could not have come to the conclusion that the balance of convenience was not in favour of the plaintiffs merely because they bad obtained possession of the vehicles by recourse to improper criminal proceedings. This is specially so because the learned District Judge has himself found that since the registration of the vehicle stands in the names of the plaintiffs, they may be held 1 able far breach of the provisions of the Motor Vehicles Act etc. and, therefore, the likelihood of their suffering irreparable injury is there.
10. According to what has been stated above, it is clear that all the three conditions for grant of temporary injunction appear to be in favour of the plaintiffs and, therefore, they are entitled to the grant of injunction prayed for. However, as the ownership of the tractor is a matter of serious dispute between the parties in this suit, the rights of the defendants have also to be safeguarded and, therefore, the injunction in favour of the plaintiffs would be granted only on the condition that the plaintiffs give an undertaking that in case they fail in the suit, they will hand over possession of the tractor and trolley in dispute to the defendants immediately and that they shall maintain account of the use of the tractor and trolley regularly and submit the same every six months in the trial court. It is stated by the learned counsel for the appellants that the custody of the tractor and the trolley had been handed over to the police on 25.9.81 in pursuance of the order of the Hon'ble Supreme Court dated 21.9.81 read with order dated 23.9 81 and in view of the order passed by this Court now, the possession must be directed to be delivered back to them. In the facts and circumstances of the case, this appears to be proper. The plaintiffs would be entitled to get back the delivery of the tractor and trolley from the police provided they give an undertaking as stated above. 11. The appeal is thus allowed in the terms stated above. In the circumstances of the case, I shall leave the parties to bear their own costs.