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2003 DIGILAW 1344 (MP)

Balaram v. Madan Gir

2003-12-11

A.K.AWASTHY

body2003
Judgment ( 1. ) APPELLANTS/defendants have filed this appeal under Section 100, CPC against the judgment and decree dated 13. 8. 87 in Civil Appeal No. 30-B/84 passed by the learned VIth Additional District Judge Indore, confirming the judgment and decree dated 27. 4. 83 in Civil suit No. 49-B/79 passed by the learned Civil Judge, Class-II, Depalpur. ( 2. ) ADMITTED facts of the case are that the defendants are father and son and the plaintiff used to pledge his gold and silver ornaments to the defendant and that the plaintiff in Aasad Badi II Samvat 2031 has pledged 4 Tolas of gold and 200 Tolas of silver ornaments (40 articles in number) to the defendants for an amount of Rs. 9,888/ -. That the plaintiff had sent a registered notice dated 14. 11. 78 for the return of his ornaments and the defendant had sent a reply Of the notice. ( 3. ) THE case of the plaintiff is that the defendants have not returned the alleged ornaments to the plaintiff in spite of the notice dated 14. 11. 78 and as such the defendants be directed to return the ornaments or in alternative a decree be passed for the value of the ornament after deducting the amount of Rs. 9,8887- with interest. ( 4. ) THE case of the defendents is that the plaintiff and his father Kanhaiya Gir lived together with the members of joint family at village Betma and that Kanhaiya Gir has redeemed his jewellery on Miti Aasad Sudi 3 Samvat 2031, after payment of a sum of Rs. 1,500/- and acknowledged the receipt of the pawn ornaments vide Ex. D/1. ( 5. ) THE learned Trial Court has held that the plaintiff used to live separately from his father Kanhaiya Gir and the defendants are liable to pay the amount of the pawn ornaments, because the return of the ornaments by the defendants to the father of the plaintiff will not absolve the responsibility to the defendants to pay the amount. The learned appellate Court has confirmed the finding and it is also held that the learned Trial Court has not erred in assessing the market value of the pawn ornaments from the date of conversion. ( 6. The learned appellate Court has confirmed the finding and it is also held that the learned Trial Court has not erred in assessing the market value of the pawn ornaments from the date of conversion. ( 6. ) THE following are the substantial questions of law framed in the case: (1) Whether on the facts and in the circumstances of the case the judgment of the lower appellate Court is vitiated for not giving effect to the document Ex. D/l and the statement of Kanhaiya Gir which goes to establish redemption by Kanhaiya Gir? (2) Whether the lower appellate Courts determination of rights on the date of suit was arbitrary and such determination could only be based on the date of conversion? ( 7. ) FROM the statement of Gani Khan (PW1), Chain Singh (PW2), Ramesh Chandra (PW3) Madan Gir (PW4) and the admission of the witness of the defendant Kanhaiya Gir (DW2) it is clear that the plaintiff was living separately form his father from last 15 years. The plaintiff has filed copy of the decree (Ex. P/16) in Civil Suit No. 33-A/72 from which it is clear that the partition has taken place in between the plaintiff and his family members and the decree (Ex. P/16) also corroborates the oral statement of the witnesses of the plaintiff and the admission of D W3 that the plaintiff has separated from his father from last more than 15 years. The ornaments were pledged to the defendants by the plaintiff. The defendants produced Ex. D/1 to show that the father of the plaintiff has taken back the ornaments after paying the amount of Rs. 1,500/ -. The father of the plaintiff was having separates dealing with the defendants and as such the return of ornaments by the defendants to the father of the plaintiff does not absolve the defendants of the responsibility of returning the ornaments to the plaintiff who had in fact pledged the ornaments in his personal capacity. ( 8. ) IT is contended by the learned Counsel for the appellants that the learned Trial Court and the learned appellate Court have not properly assessed the market value of the ornaments on the date of conversion i. e. filing of the suit. The plaintiff, Madan Gir has stated on oath that at the time of demand of ornaments the market value of gold was about Rs. The plaintiff, Madan Gir has stated on oath that at the time of demand of ornaments the market value of gold was about Rs. 2,600/- per Tola and that the value of silver was Rs. 3,000/- per kg. It is admitted by the witness of the defendant Kailash Chandra that in the year 1983 the market value of gold was Rs. 2,140/- per Tola and silver was Rs. 3,000/- per kg. The learned Trial Court and the learned appellate Court below have rightly assessed the value of silver and gold on the date of their conversion and the concurrent finding of the fact of both the Courts below is not liable to be interfered in the 2nd appeal, which is based on the assessment of the relevant evidence on record. The redemption of the ornaments by Kanhaiya Gir the father of the plaintiff vide Ex. D/l had no bearing as far as the claim of the plaintiff is concerned and as such the learned Courts below have not committed any error in not giving effect to the document Ex. D/l. The Courts below have not arbitrarily determined the value of the pladged gold and silver ornaments and the value was rightly assessed on the date of conversion. The substantial questions of law are answered in negative against the appellants. ( 9. ) THE appeal is devoid of merit and is hereby dismissed. No order as to costs.