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2024 DIGILAW 707 (RAJ)

Chand Mohmad v. Babu

2024-04-30

NARENDRA SINGH DHADDHA

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JUDGMENT : Narendra Singh Dhaddha, J. 1. This Civil Second Appeal has been filed by the appellants-plaintiffs (for short 'the plaintiffs') under section 100 CPC against the judgment and decree dated 26.11.1997 passed by Additional District Judge, Chhabra (for short 'the appellate court') in Civil Appeal No. 102/92, whereby the appeal filed by the respondent Nos. 1 to 12-defendants (for short 'the defendants') has been allowed and judgment and decree dated 21.02.1992 passed by M.J.M. 1st Class, Chhabra (for short 'the trial court') in Civil Suit No. 26/83 decreeing the plaintiffs' suit for redemption, has been set aside and consequently the suit has also been dismissed. 2. Plaintiffs had filed a suit for redemption of pledged property against the defendants. In plaint, plaintiffs stated that ornaments mentioned in the plaint were pledged with the defendants on the condition of returning the same back to the plaintiffs when payment was to be made to them. Plaintiffs in their plaint also stated that plaintiffs had given a notice on 15.06.81 for returning the ornaments pledged with the defendants but defendants had not returned the said ornaments. 3. Defendants had filed a written statement in which they denied the pledge of ornaments by the plaintiffs and also stated that the suit was time barred and not properly valued. Issue of jurisdiction was also raised by the defendants. 4. On the basis of the pleadings of the parties, learned trial court framed the following issues: (1) Whether plaintiffs' father Ahmed had pledged 28 Tola gold ornament and 9-1/4 Kg Silver ornament with defendants' father Jagnnath on 12.6.57 and received Rs.4,000/-, for which Yadast Bahi was prepared, on which late Jagnnath put his thumb impression and got signed witnesses. Same entry was made in the ledger books of Jagnnath where Late Ahmed signed it and got signed the witnesses? (2) Whether it was agreed that whenever amount would be paid then ornaments shall be released and interest thereon @ one rupee per hundred was agreed to be paid? (3) Whether plaintiffs were demanding their ornaments one year prior to 15.06.81 and were ready to pay pledged money? (4) Whether cause of action accrued on 12.04.81? (5) Whether suit was within limitation? (6) Whether trial court had no jurisdiction to try the suit? (7) Whether the suit was filed on deficit court fees? (8) Relief? 5. (3) Whether plaintiffs were demanding their ornaments one year prior to 15.06.81 and were ready to pay pledged money? (4) Whether cause of action accrued on 12.04.81? (5) Whether suit was within limitation? (6) Whether trial court had no jurisdiction to try the suit? (7) Whether the suit was filed on deficit court fees? (8) Relief? 5. Trial court vide judgment and decree dated 21.02.1992 decreed the suit filed by the plaintiffs. Defendants preferred an appeal. The appellate court vide judgment and decree dated 26.11.1997 set aside the judgment and decreed passed by the trial court and consequently dismissed the plaintiffs' suit. 6. This court had admitted the appeal on the following substantial questions of law: “1. Whether Article 70 of the Limitation Act, 1963 is retrospective in operation and applies to a suit against the legal representatives of the original Depository or Pawnee? 2. Whether once document exhibited without any objection in the Trial Court at subsequent stage in appellate Court objection regarding admissibility is sustainable?” 7. Learned counsel for the plaintiffs submits that the appellate Court wrongly came to the conclusion that suit filed by the plaintiffs is time barred. The appellate Court wrongly interpreted the Article 70 of the Limitation Act, 1963. Learned counsel for the plaintiffs also submits that plaintiffs had given a notice on 15.06.81 for returning the pledged ornaments but defendants had not returned the ornaments as pledged by the plaintiffs' father Ahmed. Plaintiffs had filed the present suit within three years when the cause of action arose. So, judgment and decree of the appellate Court be set aside. 8. Learned counsel for the plaintiffs also submits that trial court while decreeing the suit relied on the entry made in Yadast Bahi by Ahmed and Jagannath. In Ex. 1, pledged ornaments were mentioned and it was mentioned that Ahmed, father of the plaintiffs Ahmed had pledged the gold and silver ornaments with Jagannath. Jagannath had put his thumb impression on it. Defendants had not raised any objection at the time of evidence while said document was exhibited. Defendants' witness DW-3 Dhulilal had admitted the thumb impression of the deceased-Jagannath in Yadast Bahi Ex.1. So, there was no need for the plaintiffs to seek permission to lead secondary evidence before the trial court. Appellate Court without any objection by the defendants gave the finding regarding inadmissibility of the Yadast Bahi Ex.1. Defendants' witness DW-3 Dhulilal had admitted the thumb impression of the deceased-Jagannath in Yadast Bahi Ex.1. So, there was no need for the plaintiffs to seek permission to lead secondary evidence before the trial court. Appellate Court without any objection by the defendants gave the finding regarding inadmissibility of the Yadast Bahi Ex.1. Learned counsel for the plaintiffs also submits that once the document exhibited and no objection being raised by the defendants at the time of evidence, then said objection could not be raised at appellate stage. So, finding of the appellate Court regarding inadmissibility of Yaddast Bahi Ex.1 be set aside. 9. Learned counsel for the plaintiffs has placed reliance upon the following judgments : (1) Kiran Singh & Ors. v. Chaman Paswan & Ors. reported in AIR 1954 SC 340 ; (2) Koopilan Unseen's daughter Pathumma& Ors. v. Koopilan Unseen's Son Kuntalan Kutty dead by LRs & Ors. reported in AIR 1981 SC 1683 ; (3) Om Prakash Agarwal Since deceased the LRs & Ors. v. Vishan Dayal Rajpoot & Anr. reported in AIR 2018 SC 5486 ; (4) Seth Ramdayal Jat v. Laxmi Prasad reported in AIR 2009 SC 2463 ; (5) R. Krishna Murthy v. Smt. Annapurnamma & Ors. reported in AIR 1989 Karnataka 209; (6) Premchand Manichand Rathor v. Ramkunwar reported in 1982 (2) BomCR 499 ; (7) R. V. E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr. reported in AIR 2003 SC 4548 ; (8) Smt. Dayamathu Bai v. K. M. Shaffi reported in AIR 2004 SC 4082 . 10. Learned counsel for the defendants has opposed the arguments advanced by learned counsel for the plaintiffs and submitted that the appellate Court rightly came to the conclusion that present suit filed by the plaintiffs was time barred because they had not filed the suit within time and document Ex. 1 Yaddast Bahi was not proved by them and they had not adduced the evidence of the handwriting expert. Original Yadast Bahi was not produced before the trial court but the trial court wrongly gave the finding regarding admissibility of the same. So, present appeal being devoid of merit, is liable to be dismissed. 11. I have considered the arguments advanced by learned counsel for the plaintiffs as well as learned counsel for the defendants. 12. Original Yadast Bahi was not produced before the trial court but the trial court wrongly gave the finding regarding admissibility of the same. So, present appeal being devoid of merit, is liable to be dismissed. 11. I have considered the arguments advanced by learned counsel for the plaintiffs as well as learned counsel for the defendants. 12. It is an admitted position that the plaintiffs had given the notice for redemption of pledged property to defendants on 15.06.81 and they have filed the suit within three years of the notice. So, in my considered opinion, qua issue of limitation, the appellate Court wrongly came to the conclusion that suit was time barred. So, substantial question of law regarding limitation is decided in favour of the plaintiffs and against the defendants. 13. By way of evidence, plaintiffs proved Yaddast Bahi Ex.1 and even witness of defendants (DW-3 Dulilal) had also admitted the thumb impression of the deceased Jagannath on the Yaddast Bahi Ex.1. Defendants had not raised the objection about thumb impression of deceased Jagannath on document Ex. 1 but the appellate Court without any contention or objection of the defendants had discarded document Ex.1. Ex.1 was well proved by the plaintiffs as well as witness DW-3 Dulilal who is witness of the defendants. So, in my considered opinion, once document is exhibited without any objection, then objection regarding its inadmissibility could not be raised at appellate stage. The appellate Court also wrongly came to the conclusion that Ex.1 comes within the purview of secondary evidence and no such permission was not sought by the plaintiffs. In my considered opinion, Ex.1 was exhibited as a primary evidence. So, there was no occasion to treat it as a secondary evidence. So, finding of the appellate Court is not sustainable. So, appeal filed by the plaintiffs deserves to be allowed. 14. The Civil Second Appeal is allowed. The judgment and decree dated 26.11.97 passed by the appellate Court is set aside and judgment and decree dated 21.02.92 passed by the trial court is restored.