NEMICHAND Vs. LAXMIDEVI

JUDGEMENT

(1.) THIS appeal under Section 96 CPC is directed against the judgment and decree dated 28.10.1989 passed by District Judge, Bikaner, whereby, the suit filed by the plaintiff - respondent has been decreed.

(2.) THE facts giving rise to the appeal may be summarized thus: the plaintiff Laxmidevi filed a suit for recovery of Jewellery from Locker No. 244, Key No. 319 with State Bank of Bikaner & Jaipur, Public Park, Bikaner with the averments that the plaintiff was married to defendant Nemichand on 27.04.1961 with Hindu rites at Bikaner, when she was minor; plaintiff's father and other relatives gave several gold and silver ornaments and as the plaintiff was minor and on account of affection with the defendant, plaintiff's father placed the entire Jewellery in the name of plaintiff and defendant in a Locker in their joint name, however, the defendant started harassing the plaintiff and filed suit No. 56/1974 before the District Court, Bikaner, in which, decree for dissolution of marriage dated 28.07.1975 was passed; still the Jewellery was not returned and the Locker has not been got converted into her sole name and, therefore, the suit was filed. Plaintiff prayed for declaration that the Jewellery and goods lying in the Locker are solely owned by her and prayed that a decree be passed in her favour that she alone could operate the said Locker.

(3.) AFTER hearing the parties, the trial court came to the conclusion that the goods lying in the Locker were the 'Istridhan' of the plaintiff and she was entitled to them; suit was within limitation; issue No.3 and 4 were not pressed; issue No.5 was decided earlier and additional court -fees was paid by the plaintiff and ultimately the suit was decreed as noticed hereinbefore. It is submitted by learned counsel for the defendant - appellant that the judgment and decree passed by the trial court is ex facie against the record of the case and is contrary to the available evidence and the same deserves to be set aside. It was, inter alia, submitted that from the evidence, it is apparent that the plaintiff was not able to give out any details of what was lying in the Locker neither any details were given in the plaint nor the same were indicated in her statement, which conclusively goes to show that she had no relation whatsoever with the Jewellery, there is huge contradiction between the pleadings and the oral evidence led by the parties and from the oral evidence, it is apparent that the suit was absolutely baseless, the trial court has relied on the contents of an application and affidavit, which was filed during pendency of the proceedings without any further proof, which is against the settled position of law. The finding recorded by the trial court in para -10 of the judgment is based on conjectures and surmises; the suit was ex facie barred by limitation, which is apparent from the fact that the marriage was dissolved in the year 1975 and, whereafter, for the first time, the suit was filed claiming the