JUDGMENT : 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 summarised 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. A written statement was filed by the defendant-appellant denying the averments made in the plaint. It was, inter alia, claimed that the gifts etc. 3. A written statement was filed by the defendant-appellant denying the averments made in the plaint. It was, inter alia, claimed that the gifts etc. presented by the plaintiff's parents and other relatives are with plaintiff's parents only, plaintiff never brought it to her matrimonial home; the Jewellery lying in the Bank Locker belongs to the mother of the defendant, not a single Jewellery is that of plaintiff; it was claimed that after marriage in 1961, one day the plaintiff took away all the Jewellery belonging to defendant's mother and did not return back; where-after the defendant's side lodged criminal case, which remained pending before the Court of Additional Munsif Magistrate, Bikaner, where plaintiff's father produced the entire Jewellery, which belonged to defendant's mother in the Court, where-after, same day, as per orders of the Court, the same was placed in the said Bank Locker; the entire Jewellery in the Bank Locker is that of defendant's mother, whose weight and other details are with defendant's father; it was alleged that the suit has been filed mala fide and out of greed, the decree of divorce in the year 1975 was admitted; no cause of action has arisen in plaintiff's favour; in the additional pleas, it was stated that the entire Jewellery belong to defendant's mother, which was taken away by plaintiff and, therefore, proceedings before the Court of Additional Munsif Magistrate, Bikaner was initiated in the year 1965, in which, the Jewellery was recovered from plaintiff's father and was brought to the Court and as per the Court's order, the same were placed in the Locker, whose Key is with the defendant and its rent was being paid by him; the suit was barred under Article 58 of the Limitation Act, 1963 (for short `the Limitation Act') as at the time of divorce no action was taken by the plaintiff for the said Jewellery, she was not entitled to any relief. The defendant has been continuously claiming the Jewellery that of his mother since 1965 and deliberately Article of the Limitation Act has not been indicated in the suit, which was liable to be dismissed; plea regarding waiver/relinquishment were made for not taking any action between 1965 to 1982; estoppel by latches and estoppel by silence was also claimed. 4. On the pleading of the parties, the trial court framed six issues. 4. On the pleading of the parties, the trial court framed six issues. On behalf of the plaintiff, she herself was examined and her father was examined as PW-2. On behalf of defendant, he himself was examined and his father was examined as DW-2. The parties also produced documentary evidence. 5. 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. 6. 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, where-after, for the first time, the suit was filed claiming the Jewellery in the year 1982 and from the assertion of the plaintiff and her witness on record, it is apparent that the cause of action, if any, had occurred long back and, therefore, the suit was ex facie barred by the limitation. The trial court merely on assumptions and presumptions has come to the conclusion that the plaintiff was entitled for declaration. The trial court merely on assumptions and presumptions has come to the conclusion that the plaintiff was entitled for declaration. It was prayed that the suit be dismissed. 7. Reliance was placed on Chatar Singh v. Additional District Judge (F.T.) No.1, Jaipur City, Jaipur & Anr., 2013 (4) WLN 120 and Sayed Muhammed Mashur Kunhi Koya Thangal v. Badagara Jumayath Palli Dharas Committee and Ors., (2004) 7 SCC 708 . 8. Per contra, learned counsel for the plaintiff-respondent submitted that from the plea of the defendant, it is apparent that he had no right to contest the suit, he was merely a custodian, the plea that the Jewellery belongs to his mother has absolutely no basis inasmuch as, if the Jewellery, which was placed in the Bank Locker had anything to do with defendant's mother, instead of defendant Nemichand's name, the name of his mother would have been included along-with the plaintiff; the mother did not appear in the witness-box to claim the Jewellery that of her and, therefore, adverse inference must be drawn; from the pleadings of the parties, also it is clear that before the Jewellery was put in Locker, the same was produced by the plaintiff/her father, payment of rent of the Locker does not create any right in the property. The defence of limitation is not available as the defendant is a mere custodian. The entire theory of the criminal case has not been proved by production of any document. The suit was required to be decided on preponderance of probabilities and in view of the stand taken by the plaintiff-respondent that the Jewellery did not belong to him, that was sufficient to decree the suit. 9. I have considered the rival submissions made by learned counsel for the parties. 10. The issues which arise for determination in the present appeal are as to whether the plaintiff is entitled to seek declaration and whether the suit was within limitation. 11. The suit was filed by the plaintiff seeking a declaration that she was the sole-owner of the Jewellery lying with Bank Locker and a decree that she would be entitled to operate the same solely. 11. The suit was filed by the plaintiff seeking a declaration that she was the sole-owner of the Jewellery lying with Bank Locker and a decree that she would be entitled to operate the same solely. The foundation of the suit is contained in para-2 & 3 of the plaint, which reads as under:- ^^ ;g fd fookg ds le; okfnuh voL;d FkhA okfnuh ds firk ,oa fir` i{k ds vU; fj'rsnkjksa dh vksj ls cgqr ls tsojkr lksus pkanh ds HksaV ds rkSj ij okfnuh dks fn;s x;s tks okfnuh dk L=h/ku gSA 3- ;g fd okfnuh ds vo;Ld gksus ds dkj.k ,oa izfroknh usfepUn ds Lusg ds dkj.k okfnuh ds firkth us okfnuh ds leLr tsojkr okfnuh ,oa izfroknh ds la;qDr uke ls ykWdj la[;k 244 dqath la0 319 okds LVsV cSad vkWQ chdkusj ,.M t;iqj] ifCyd ikdZ] chdkusj esa tek fd;s tks vkt Hkh ykdj esa j[ks gSA ** 12. The claim made by the plaintiff was that at the time of marriage, she was gifted certain Jewellery by her father and other relatives from the parental side, which is her `Istridhan' and as she was minor at that time on account of affection towards Nemichand, plaintiff's father placed the entire Jewellery in the Joint Locker. 13. The claim made by the plaintiff was that at the time of marriage, she was gifted certain Jewellery by her father and other relatives from the parental side, which is her `Istridhan' and as she was minor at that time on account of affection towards Nemichand, plaintiff's father placed the entire Jewellery in the Joint Locker. 13. The plea was denied by the defendant in his written statement in the following terms:- ^ ^ 2- ;g fd okn i= dh isjk la[;k 2 ftl dnj c;ku fd;k x;k gS Lohdkj ughaA fir` i{k o vU; fjs'rsnkjksa us pkanh lksus ds tsojkr HksaV Lo:i fn;s x;s Fks os reke okfnuh ds ekrk firk ds gh ikl gSaA okfnuh mUgsa dHkh Hkh izfroknh ds ?kj ugha ykbZA tks tsojkr LVsV cSad vkWQ chdkusj ,.M t;iqj ih0ih0 czkap ds ykWdj esa j[ks gq, gSa os lHkh tsojkr izfroknh dh ekrk dk gS] okfnuh dk ,d Hkh tsoj muesa ugha gSA ckdh mtjkr ethn esa ntZ gSA 3- ;g fd okn i= ds isjk la[;k 3 csotg xyr c;kuh Lohdkj ugha gSA lgh fLFkfr ;g gS fd lu~ 1961 esa 'kknh gksus ds ckn ,d fnu okfnuh izfroknh ds ;gka ls izfroknh dh eka dk leLr tsojkr vius lkFk ysdj pyh xbZ rFkk okil ugha vkbZ rks izfroknh i{k us QkStnkjh eqdnek vnkyr ,Mh0 eqfUlQ eftLV~sV chdkusj Jh ih0lh0 fla?koh dh vnkyr esa pyk;k tgka okfnuh ds firk us lkjk xguk tks izfroknh dh ekrk dk Fkk vnkyr esa gkftj dj fn;kA ckn esa mlh fnu vnkyr ds vkns'kkuqlkj cSad ds mDr yksdj esa j[k fn;k x;kA yksdj esas j[kk reke tsojkr izfroknh dh ekrk dk gSA mu reke tsojkr dk out o vU; fMVsYl izfroknh ds firk ds ikl vkt Hkh gSaA ** 14. The defendant denied the allegation made in the plaint and came out with the case that the plaintiff took away the Jewellery, which was returned back by her father and the same was placed in the Bank Locker and that the Jewellery belonged to his mother. 15. The plaintiff as PW-1 in her cross-examination indicated that the Jewellery was placed in the Locker in the year 1964-65 and she did not remember the specific date. PW-2 Bhanwar Lal (plaintiff's father) also indicated in his cross-examination that the Jewellery was placed in the Locker in the year 1965. 15. The plaintiff as PW-1 in her cross-examination indicated that the Jewellery was placed in the Locker in the year 1964-65 and she did not remember the specific date. PW-2 Bhanwar Lal (plaintiff's father) also indicated in his cross-examination that the Jewellery was placed in the Locker in the year 1965. While the pleading of the plaintiff has been that after the marriage, which took place on 27.04.1961, the Jewellery was placed in the Bank Locker and name of Nemichand was included in the said Locker on account of affection towards Nemichand, whereas both the witnesses, plaintiff and her father, have stated that the Jewellery was placed in the Locker in the year 1964-65, which plea and evidence cannot be said to be in consonance with each other. 16. The defendant took a specific plea in para-3 of the written statement (supra) and in the additional plea regarding placing of the Jewellery in Locker on account of criminal proceedings, regarding which no replication was filed. Further when in cross-examination questions in relation to the said criminal proceedings were put , the same were not denied but quite evasive answers were given. On behalf of the defendant document (Ex.-A/5) was produced, which is a certified copy of extract of Invoice Register of weeded out record of the District Court, Bikaner, which indicates, that criminal proceedings were lodged on 12.10.1964 by Rajroop (father of the defendant) against Bhanwar Lal etc.(father of the plaintiff), the allegations pertained to Section 457/380 IPC, the proceedings came to an end on 13.10.1965, which clearly indicates that in the year 1964-65 no love was lost between the parties and, therefore, the fundamental plea raised by the plaintiff regarding insertion of name of the defendant on account of affection towards Nemichand falls to the ground. 17. 17. The trial court in its impugned judgment came to the conclusion that it was proved from the evidence that the relationship between the parties got polluted in the year 1964 to the extent that a Criminal Case was lodged against the plaintiff and goods were recovered with the aid of Police and, therefore, when in the year 1965 when the Locker was opened, the parties were not having good relations, however, it came to the conclusion that despite not having good relations, the very fact that the name of the plaintiff was inserted in the Locker shows that the defendant admitted the fact that the goods, which were placed in the Locker were that of the plaintiff. There is apparently no warrant for the said assumption and the finding of the trial court on this ground is essentially an outcome of conjectures and surmises. The plaintiff having filed the suit seeking declaration, the burden to prove the ownership of goods and reason for insertion of name of Nemichand was on the plaintiff. The plaintiff was required to prove the case set up in the plaint that the name of Nemichand was inserted 'on account of affection towards him', when admittedly the Locker was opened after relations become sour and the trial court also reached the finding that the Locker was opened after the relations between the parties were strained, the reason given out by the plaintiff seeking to explain the presence of name of the defendant in the Locker is apparently baseless and incorrect. 18. Besides the above, it is very pertinent in the facts and circumstances and the nature of the case involved that the plaintiff did not indicate the goods, which according to her were lying in the Locker and even in the examination-in-chief, she did not indicate the particulars of the Jewellery and merely indicated Jewellery lying in the Locker. 19. Even PW-2 plaintiff's father in his cross-examination stated that he does not have any document about the Jewellery lying in the Locker, he does not have remember the weight of the articles and does not have any list. 20. 19. Even PW-2 plaintiff's father in his cross-examination stated that he does not have any document about the Jewellery lying in the Locker, he does not have remember the weight of the articles and does not have any list. 20. When this plea was raised before the trial court for drawing adverse inference against the plaintiff, the trial court relied on an application filed by the plaintiff supported by affidavit, which was filed by her seeking delivery of the Jewellery during the pendency of the suit, wherein she had indicated the items of the Jewellery said to be lying in the Locker, to come to a conclusion that she was aware of the same. 21. The contents of the application filed during pendency of the suit and the affidavit cannot by itself par take the character of substantive evidence so as to replace the requirement of evidence required in a suit unless the said document filed during the pendency is marked as exhibit and the other side gets an opportunity to cross-examine the deponent on the said document, as such the trial court was not justified in overlooking the fundamental deficiency in the plaint based on the contents of the application dated 17.02.1984. 22. It is trite law that the plaintiff has to stand on his/her own legs and it cannot rely on the deficiency of the defendant for the purpose of succeeding in a suit. The plaintiff did not produce any evidence regarding the ownership of the goods lying in the Locker and as noticed hereinbefore the fundamental plea raised by her for presence of her name in the Locker in para-2 & 3 of the plaint apparently had no basis. 23. However, as the respondent claimed that the Jewellery belonged to his mother; he did not claim any right in the said Jewellery, the trial court drawing adverse inference on account of non-production of the mother held in favour of the plaintiff on the said ground. 24. Hon'ble Supreme Court in Sayed Muhammed Mashur (supra) held that the plaintiff could succeed on the strength of his case and not on the basis of any weakness found in the defendant's case and emphasised the requirement of pleadings before the court could grant any relief in a case. 25. 24. Hon'ble Supreme Court in Sayed Muhammed Mashur (supra) held that the plaintiff could succeed on the strength of his case and not on the basis of any weakness found in the defendant's case and emphasised the requirement of pleadings before the court could grant any relief in a case. 25. So far as submissions of learned counsel for the respondent that the defendant has simply claimed that the Jewellery belongs to his mother and, therefore, he has no cause to contest the suit is concerned, the submission though sounds attractive is, on a close scrutiny, found to be baseless. As already noticed above, the plaintiff claimed the Jewellery as her own, despite the fact that the Locker was in joint name however, she failed to prove the reason for such inclusion and she further failed to prove the ownership of the goods as such, merely become defendant did not claim ownership of the goods, the plaintiff cannot succeed. Further, in a suit of present nature, the plaintiff cannot succeed only on account of defendant alleging ownership of the goods in his mother. 26. The plea that adverse inference should be drawn against the defendant for not examining his mother is also baseless. The plea and stand of defendant from the beginning was clear as is evident from written statement filed by plaintiff in the petition for dissolution of marriage (Ex.-A/3), in any case, after filing of the written statement, for proper adjudication of dispute, it was for the plaintiff to implead defendant's mother as party and no adverse inference can be drawn against the defendant in this regard. 27. From the above, it is apparent that the suit for declaration was filed and the evidence was led only on account of the fact that the name of the plaintiff found mention in the Locker and other than the above, the plaintiff did not place any material on record either in the form of oral evidence or documentary evidence so as to substantiate her claim about 'declaration as owner of the goods lying in the Locker' and has therefore failed to prove issue No.1. The declaration sought could not be granted based on the evidence available on record, as such the finding recorded by the trial court on Issue No.1 cannot be sustained and the same is set aside. 28. The declaration sought could not be granted based on the evidence available on record, as such the finding recorded by the trial court on Issue No.1 cannot be sustained and the same is set aside. 28. Issue No.2 pertained to the limitation as to whether the suit was within limitation. 29. The plaintiff claimed the cause of action in the plaint based on the reply dated 13.07.1982 and the suit was filed on 13.08.1982. However, in para-5 of the plaint, the plaintiff specifically indicated that after the decree for divorce dated 28.07.1975 was passed between the parties, where-after, there was no reason to keep the Jewellery in the Locker with joint name. 30. In her statement PW-1 Laxmidevi stated as under:- ^^ ml fookg foPNsn ds ckn ykWdj dks esjs uke ls vUrfjr djokus ds ckjs esa lekt ds dqN O;fDr;ksa }kjk eSaus usehpUn ls dgyok;k FkkA usehpUn th us ykWdj dks esjs uke ls V~kalQj djokus ls bUdkj dj fn;kA ** (emphasis supplied) 31. In cross-examination, she stated as under:- ^ ^ ;s rykd dh fMdzh tc ikl gks xbZ mlds ckn gh usehpUn dks ykWdj V~kUlQj djokus dh eSaus dgyok;k FkkA x.ks'knkl lksuh dh ekQZr usehpUn dks dgyok;k FkkA ** (emphasis supplied) 32. DW-2 Bhanwar Lal, father of the plaintiff, stated in his cross-examination as under:- ^ ^ usehpUn us tsojkr dks nsus ls euk tc fd;k tc fd rykd dh fMdzh dks gks;s gqos nks rhu eghus gks x;s FksA ** (emphasis supplied) 33. Besides the above, an application (Ex.-A/4) was filed on behalf of the plaintiff by her counsel on 04.08.1979/06.08.1979 in the divorce proceedings decided on 28.07.1975 claiming the said Jewellery. 34. From the averment in the plaint and the above extract of statement of the plaintiff and her father, it is apparent that the plaintiff stated in her statement that immediately after the divorce, the defendant was required to hand over the Jewellery, however, he refused, and PW-2 plaintiff's father also indicated that the return of Jewellery was refused after 2-3 months of the decree for divorce. 35. Admittedly, the decree for divorce between the parties was passed on 28.07.1975. Article 58 of the Limitation Act prescribes limitation for declaration at three years when the right to sue from first accrues and Article 113 of the Limitation Act, which is residuary Article also provides three years limitation, when the right to sue accrues. 36. 35. Admittedly, the decree for divorce between the parties was passed on 28.07.1975. Article 58 of the Limitation Act prescribes limitation for declaration at three years when the right to sue from first accrues and Article 113 of the Limitation Act, which is residuary Article also provides three years limitation, when the right to sue accrues. 36. The cause of action in the present case, based on averments and evidence of the plaintiff arose when after divorce, the defendant refused to give back the Jewellery, as such, it is apparent that the suit has been filed after three years i.e. on 20.08.1982 from the date, when the cause of action arose to the plaintiff somewhere in the year 1975 i.e. within 2-3 months of the date of decree for divorce. 37. The learned counsel for the respondent has placed reliance on a judgment of Kerala High Court in Swapna v. Thankavelu : 1991 Civil Court Cases 11 , wherein relying on Section 10 of the Limitation Act, the Court came to the conclusion that when a wife entrust her valuable things to the husband for safe custody, it does not mean that the husband is the owner thereof and he is having a hostile title thereto so as to defeat the wife by claiming that her claim was barred by limitation and husband in the circumstances is certainly in the possession as a trustee, who is bound to account to the wife all her properties at any time when she demanded. 38. Section 10 of the Limitation Act envisages that no suit against a person in whom property has become vested in trust for any specific purpose, shall be barred by any length of time. Implied trusts or obligations in the nature of trusts are not within the scope of Section 10 of the Limitation Act. 39. In the present case, it is not the case of the plaintiff that the so called property vested in trust with the defendant for any specific purpose and as vesting of the property in trust with the defendant is a pre requisite, Section 10 of the Limitation Act has no application. 40. 39. In the present case, it is not the case of the plaintiff that the so called property vested in trust with the defendant for any specific purpose and as vesting of the property in trust with the defendant is a pre requisite, Section 10 of the Limitation Act has no application. 40. So far as the judgment of Kerala High Court in the case of Swapna (supra) is concerned, the plea of the plaintiff-wife in the said case was that she had entrusted the ornaments to the custody of her husband and the same was being sought back by way of the suit, the present is not the case of the plaintiff that the property was entrusted to the defendant, on the other hand the claim is to seek declaration about the ownership of the property and its possession based on ownership, which as noticed hereinbefore are covered by Article 58 and/or Article 113 of the Limitation Act and in view of the assertion made by the plaintiff and her father, the suit is ex facie barred by limitation. 41. In view of the above, the judgment and decree passed by the trial court cannot be sustained. 42. Consequently, the appeal is allowed. The judgment and decree dated 28.10.1989 passed by the District Judge, Bikaner is set aside. The suit filed by the plaintiff is dismissed. No costs.Appeal allowed.