BHANWARI Vs. DOONGERMAL

JUDGEMENT

(1.) THIS is a civil regular second appeal by the plaintiff Mst. Bhanwari in suit for declaration which was decreed by the trial court but dismissed in appeal by the Civil Judge, Sojat, by his judgment and decree dated 28. 1. 1958.

(2.) THE material facts leading up to this appeal are these: According to the plaintiff, the defendant Vijailal had pledged two gold Gokhroos weighing 13-1/2 Tolas to the plaintiff for Rs. 600/- on Sawan Badi 7, Smt. 2007 corresponding to 25. 6. 1951 vide Ex. 1. On 11. 9. 1952, the other defendant Daya Shanker made a report to the police as respects these Gokhroos alleging that Vijailal had mis-appropriated them as a result of which the latter was challaned. THE police recovered the Gokhroos from the possession of the plaintiff and eventually they were put under the custody of the Court. We do not know from the present record as to what was the result of that criminal litigation. THEreafter on 17. 4. 1953 the plaintiff instituted the suit, out of which this appeal arises, against Vijailal and Daya Shanker for a declaration that he was entitled to retain possession of the Gokhroos in question till the loan advanced by her to Vijailal was repaid. On the footing that Vijailal had died sometime on or about the 14th March, 1953 after the suit had been filed, the plaintiff made an application in the trial court to the effect that the deceased's heirs, who are alleged to be his brother Doongarmal and three sons, namely, Ghisoolal, Dhanraj and Johrilal, be impleaded as his legal representatives. This application was allowed and Doongarmal, Ghisoolal, Dhanraj and Johari Lal were impleaded as defendants being legal representatives of deceased Vijailal. Out of these legal representatives, only Ghisoolal filed a written statement wherein he stated that he had no knowledge of the pledge which was alleged to have been made by his father in favour of the plaintiff. THE other defendant Daya Shanker stoutly resisted the suit. His case was that the Gokhroos which had been pledged by Vijailal to the plaintiff belonged to him and that he had pledged them with Vijailal for a sum of Rs. 400/- on a specific condition that the pledgee would have no right to sub-pledge them with any other person. His case further was that a suit for mere declaration was not maintainable. THE trial court held that the pledge relied on by the plaintiff was proved. It also held that a suit for declaration was perfectly maintainable as the Gokhroos were in the custody of the Court. It may be mentioned here that as regards the contention of defendant Daya Shanker that these Gokhroos belonged to him and that they had been pledged by him with Vijailal on a specific condition that the latter would have no right to pledge them any further, no issue or issues were raised in the trial court, and it further appears that the defence of this defendant was struck out, for certain reasons into which it is un-necessary to go for the purpose of this appeal, by the order of the trial court dated 15. 4. 1957. On the findings mentioned above, the trial court decreed the plaintiff's suit. THEreupon, defendant Daya Shanker appealed to the Civil Judge, Sojat. THE learned Civil Judge seems to have mentioned a number of points which were raised before him, in his judgment, but out of these he dealt with only two. THE first was as regards the non-maintainability of the suit for mere declaration. This point was decided by the Civil Judge in favour of the plaintiff and the suit was held to be perfectly maintainable. THE second point raised before the learned Judge was that Vijailal had actually died on 14. 3. 1953 before the plaintiff instituted the present suit. Indeed that he died on that date was stated by his legal representatives in the trial court, but it does not seem to have been appreciated that this was a date prior to the institution of the suit itself, and no one seems to have raised the point which was for the first time raised before the lower appellate court, and that point was that the entire suit must be held to have failed as it was brought against a defendant who had already died at the date of the suit. This point prevailed with the learned Judge, and consequently he allowed the appeal, and dismissed the plaintiff's suit as entirely void, having been brought against a defendant who had already died at the date of the suit. Aggrieved by this judgment, the plaintiff has come in second appeal to this Court.