HANS RAJ Vs. FIRM HAZARIMAL DIPA

JUDGEMENT

(1.) THIS is a second appeal by the defendant against the judgment and decree of the learned Senior Civil Judge, Sirohi, dated the 12th August, 1953.

(2.) THE facts giving rise to it are that on the 28th of December, 1958 the plaintiff-firm filed a suit for the recovery of a sum of Rs. 1271/10/6. THE suit was based on a Khata dated Baisakh Sudi 11, Svt. 2003 for Rs. 1149/12/7. It was averred by the plaintiffs that defendant Hansraj had transaction with the firm in two names, firstly, in the name of Labhchand Amichand who were his father and grandfather, and secondly, in the name of Hansraj Lumchand i. e. in his own name and the name of his father. It was further averred that the Khata of Rs. 1149/12/- was sigued by the defendant. THE plaintiffs further claimed Rs. 121/14/6 for interest. THE defendant admitted the execution of Khata on which the suit was founded, but pleaded that he had paid Rs. 300/- and Rs. 500/- on Bhadwa Sudi 8, and Asoj Badi 3, Svt. 2003 respectively. It was also admitted by him that he had another Khata in the name Hansraj Lumbchand, but it was contended that he was entitled to get about Rs. 1500/- from the plaintiffs in that account. THE trial court came to the conclusion that the defendant was not able to prove the payment of Rs. 800/- as asserted by him and, therefore, it passed a decree for Rs. 1264/12/- on 30th November, 1949 Against that decree, the defendant went in appeal which was heard by the learned District Judge, Sirohi. He remanded the suit to the trial court since he was doubtful if the appropriation of the amounts of Rs. 300/- and Rs. 500/- was made in the khata on which the suit was founded or in the other khata of Harsraj Lumbchand. While this suit was still pending, the plaintiffs who had reserved their right to file the suit on the khata of Harsraj Lumbchand, filed another suit for Rs. 447/- against the defendant. This was based on the other khata of the defendant, which was in the name of Hansraj Lumbchand. THE trial court consolidated both the suits and framed the following 8 issues: - (1) Did the defendant purchase 188 bags costing Rs. 2796/3/- from the plaintiffs? Did he take delivery of 28 bags out of them and did he entrust the remaining 160 bags in the plaintiff's for sale? P (2) Has the defendant been properly credited for a sum of Rs. 2,143/10/3 as cost of 160 bags of cotton seeds? P. (3) Did the defendant, on 6. 9. 47, purchase 50 bags of cotton seeds costing 619/4/6/- from the plaintiffs and has the defendant been rightly debited for this amount? P. (4) Has the defendant been rightly debited for a sum of Rs. 53/11/- as loss sustained in ground-nut business and for Rs. 5/6/- as notice charges? P. (5) Should the defendant have been credited for l/3rd instead of l/4th share for the profit of business in rice Phuli? P. (6) Should not the defendant have been credited with Rs. 3/2/-? P. (7) Are Bhabutmal and Sheshmal the owners of the firm Hazarimal Deep Chand? P. (8) Relief?