BASTI RAM Vs. BAHADUR MAL

JUDGEMENT

(1.) This second appeal under Section 100 CPC is directed against the judgment and decree dated 1.8.2005 passed by the Additional District and Sessions Judge No.3, Jodhpur, whereby the judgment and decree dated 10.5.2001 passed by the Additional Civil Judge (Jr.Div.) No.5, Jodhpur has been upheld. The facts in brief may be noticed thus : the appellant filed a suit for recovery of gold articles or their value in a sum of Rs.12,350/- with the averments that the plaintiff Basti Ram and defendant Bahadurmal were residents of Dhundhada and were involved in business. The defendant had admitted in his notice dated 15.2.1965 regarding the mortgage of the said articles which weigh about 6 Tola on 27.8.1964 and a sum of Rs.600/- was lent; the said articles were still with the defendant, which have not been returned, no proceedings for foreclosure have been initiated by the defendant, when on 26.1.1981, the plaintiff requested the defendant to redeem the said articles, he avoided the same and therefore, notice by way of telegram dated 31.1.1981 was got issued. Ultimately, the relief as noticed herein- before was prayed for in the plaint.

(2.) It appears that initially a written statement was filed by Bahadurmal, wherein he denied all the averments made in the plaint. However, after his death, his legal representatives were taken on record and they filed another written statement and besides reiterating the plea as raised by their father, it was contended that the articles which were mortgaged with the defendant for a sum of Rs.600/- were returned back on 24.4.1968 and a receipt in this regard was executed by the plaintiff and therefore, the said articles were not in possession of the defendant and consequently, the plea regarding request made on 26.1.1981 as notice dated 31.1.1981 was baseless and incorrect. Certain other pleas were also raised in the additional reply. Ultimately, it was prayed that the suit be dismissed. The trial court framed as many as eight issues. On behalf of the plaintiff 4 witnesses were examined and on behalf of the defendant 2 witnesses were examined.

(3.) After hearing the parties, the trial court came to the conclusion that the transaction of mortgage of the articles for a sum of Rs.600/- did take place between the parties; the plaintiff failed to prove that the articles were not returned back and the defendant proved that the articles were returned back; the plaintiff was not entitled for return of the articles or a sum of Rs.12,350/- as they have already been returned, the issues framed based on the plea raised by the defendants were not pressed and ultimately, the suit was dismissed.