- (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 summarized 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. 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; whereafter 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, whereafter, 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. 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.
(3.) 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. 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, whereafter, for the first time, the suit was filed claiming the;