GANGA BISHAN Vs. JAI NARAIN

JUDGEMENT

(1.) This appeal by certificate is filed against the judgment and decree passed by the High Court of Rajasthan in Regular First Appeal No. 43 of. 1962, dismissing the appeal filed by the appellants against the judgment and decree passed in Civil Suit No. 5 of 1960 on the file of the District Judge, Balotra and allowing in part the cross-objections filed by the respondent. The appellants were the defendants in the suit and the respondent was the plaintiff. The parties are referred to hereinafter in accordance with their position in the Trial Court.

(2.) The parties belong to Barmer town in the State of Rajasthan. The case of the plaintiff was that on 25-12-1957 the defendants received from him gold weighing 250 tolas as a trust deposit (amanat), that they had agreed to carry that gold to Bombay at their own risk and to deliver it to the plaintiff against the payment of a sum of Rs. 300/- as their remuneration for the work. The plaintiff produced along with the plaint a tehrir (amanati chithi) said to have been executed by the defendants under which they had acknowledged the receipt of the said quantity of gold which was of 99.45 fineness. The plaintiff alleged that after receiving the above gold the defendants neither carried it to Bombay nor returned it to him at Barmer. He further alleged that on 27-7-1960 he had sent a registered notice calling upon the defendants to return the gold and as they had failed to comply with his demand, he had instituted the above suit. This suit was filed on Oct. 5, 1960 for recovery of the gold or its value which he estimated at Rs. 34,000/-. The defendants are brothers. They were all employees of the Government. The first defendant Ganga Bishan was working as the Head Constable in the Police Department since 1940 at Barmer. The second defendant Ram Pratap was then working in the Railway Police The third defendant Bhanwar Lal was also working in the Police Department since Oct. 1951 and at the time of the suit he was working as a Head Constable at Barmer. The fourth defendant Ram Chandra was working as a teacher. All the defendants filed a common written statement. They denied having received any gold from the plaintiff and also ,he execution of tehrir, i.e. amanati chithi. They denied having undertaken the work of carrying the gold from Barmer to Bombay and to hand it over to the plaintiff at Bombay. They alleged that the plaintiff was indulging in the smuggling of gold from Pakistan. They also pleaded that the suit was barred by time. On the basis of the pleadings the Court framed a number of issues and at the conclusion of the trial the Trial Court decreed the suit directing the defendants to hand over to the plaintiff 250 tolas of gold of the fineness of 99.45 and in default a sum of Rs. 34,000/-. The defendants were directed to pay the costs also. Aggrieved by the decree of the Trial Court, the defendants filed the appeal referred to above, before the High Court of Rajasthan. The plaintiff also questioned the decree by way of cross-objections contending that the price of the gold fixed by the Trial Court at Rs. 136/- per tola was not correct and that it should have been fixed at Rs. 146/- per tola since the price of gold had gone up by the date of the decree. He also contended that the decree of the Trial Court should be modified by directing payment of interest from the date of the suit on the value of the gold. The High Court dismissed the appeal of the plaintiff, as mentioned above, but allowed the cross-objections of the plaintiff in part, by directing the defendants to pay interest on Rs. 34,000/- at the rate of 6 per cent per annum from the date of suit, i.e. Oct. 5, 1960 till realisation, in addition to the sum of Rs. 34,000/- in the event of the defendants not returning the gold bar to the plaintiff. This appeal is filed against the judgment and decree of the High Court.

(3.) It is no doubt true that in this case both the Trial Court and the High Court have recorded concurrent findings on the question of entrustment of gold to the defendants. But since we found that there were some serious infirmities which had been overlooked by the High Court and the Trial Court, we requested the learned counsel to take us through the evidence on record and to make their submissions on the said question of fact also.