SOHAN LAL Vs. GULAB CHAND

JUDGEMENT

(1.) THESE connected appeals arise out of a suit for recovery of goods in specie or in the alternative for damages.

(2.) THE suit (No. 297 of 1950) was instituted in the Court of Civil Judge, Ratangarh, on 20-7-50 by Chandmal against Hazarimal, Sohanlal, Bhanwarlal and Surajmal. THE facts necessary for the disposal of the present appeals are these. THE case of the plaintiff was that the defendants were partners in a partnership firm Gauri Shankar Sohanlal of Karanpur which had closed its business. It was alleged that the plaintiff purchased 176 bags of gur weighing 352 mds. on Chait Sudi 13, Smt. 2002 through this firm of the defendants and kept there for sale, that the defendants sent an account of their dealings with the plaintiff upto Kartik Sudi 1, Smt. 2002 showing a credit balance of Rs. 9266-4-6 in his favour, that the price of gur was debited to him in this account, but that it had not been sold by the date upto which the account was sent and that on 15-6-46 the plaintiff served a notice on the defendants (asking them to pay the price of the gur? ). On that date the market rate of gur was Rs. 13/-per maund and the price of 352 mds. of gur had been claimed at that rate in the plaint. Further it was alleged that the plaintiff asked the defendants several times (to pay the price of the gur or return it in specie?), but they kept on asking for time and finally on 1-7-50 defendants Nos. 1 to 3 made a refusal and hence the suit was being instituted. Hazarimal and Bhanwarlal filed a written statement in which they asserted that they were not partners of the firm Gauri Shankar Sohanlal and had nothing to do with the transactions in suit. THEy denied all the allegations made in the plaint. Hazarimal died during the pendency of the suit and Dhanraj, Champalal, Jiwanmal and Shiv Bhagwan were impleaded as his legal representatives. THEse legal representatives filed a written statement similar to that filed by Hazarimal and Bhanwarlal.

(3.) COMING now to the other findings of the learned Civil Judge the lower appellate court has accepted the finding that the gur was sold for Rs. 3452-6-6. But the other finding that the amount was adjusted towards losses incurred in the Ganganagar firm was not accepted by it. In order to prove the alleged transactions carried on by the plaintiff with the Ganganagar firm Surajmal defendant only produced the Khata of the Ganganagar firm. This Khata does not give details of all the entries. It refers to pages of the Naqal Bahi and Rokar Bahi. These two Bahis were not produced before the trial court. The learned Civil Judge however relied on the entries made in the Khata which were unsupported by the original entries made in the Naqal Bahi or the Rokar. The lower appellate court was of the opinion that the Khata was not admissible under sec. 34 of the Evidence Act. The contention on behalf of the appellants is that this finding is erroneous. The learned counsel for the respondent has supported the finding relying on the decision in Chandi Ram V. Jamini Kanta (4 ). The learned counsel for the appellants has on the other hand relied on the decisions in the Deputy Commissioner of Bara Banki V. Ram Prashad (5) and Mating Sit V. Ma Su (6 ).