JAGAT NARAYAN, J. - (1.) THESE connected appeals arise out of a suit for recovery of goods in specie or in the alternative for damages.
(2.) THE suit (No. 297 of 1950) was instituted in the Court of Civil Judge, Ratangarh, on 20-7-50 by Chandmal against Hazarimal, Sohanlal, Bhanwarlal and Surajmal. THE facts necessary for the disposal of the present appeals are these. THE case of the plaintiff was that the defendants were partners in a partnership firm Gauri Shankar Sohanlal of Karanpur which had closed its business. It was alleged that the plaintiff purchased 176 bags of gur weighing 352 mds. on Chait Sudi 13, Smt. 2002 through this firm of the defendants and kept there for sale, that the defendants sent an account of their dealings with the plaintiff upto Kartik Sudi 1, Smt. 2002 showing a credit balance of Rs. 9266-4-6 in his favour, that the price of gur was debited to him in this account, but that it had not been sold by the date upto which the account was sent and that on 15-6-46 the plaintiff served a notice on the defendants (asking them to pay the price of the gur? ). On that date the market rate of gur was Rs. 13/-per maund and the price of 352 mds. of gur had been claimed at that rate in the plaint. Further it was alleged that the plaintiff asked the defendants several times (to pay the price of the gur or return it in specie?), but they kept on asking for time and finally on 1-7-50 defendants Nos. 1 to 3 made a refusal and hence the suit was being instituted. Hazarimal and Bhanwarlal filed a written statement in which they asserted that they were not partners of the firm Gauri Shankar Sohanlal and had nothing to do with the transactions in suit. THEy denied all the allegations made in the plaint. Hazarimal died during the pendency of the suit and Dhanraj, Champalal, Jiwanmal and Shiv Bhagwan were impleaded as his legal representatives. THEse legal representatives filed a written statement similar to that filed by Hazarimal and Bhanwarlal. Sohanlal was served, but he did not appear to contest the suit. The suit proceeded ex parte against him. Surajmal filed a separate written statement. He admitted that he was a partner of the firm Gauri Shankar Sohanlal. He also admitted that this firm purchased 176 bags of gur on behalf of the plaintiff and stored it, that the gur was debited to the plaintiff, that the account of transactions up to Kartik Sudi 1, Smt. 2002 was sent by the firm to the plaintiff in which the price of the gur was debited to him and that this account showed a credit balance of Rs. 9266-4-6 in his favour and that the gur had not been sold till then. He asserted however that the gur was sold in accordance with the instructions of the plaintiff at Rs. 10-2-0 per maund for 3452-6-6. Further he alleged that the firm Gauri Shankar Sohanlal carried on business at Sri Ganganagar also and that Chand Mal entered into transactions through the agency of the firm at Ganganagar in which he incurred losses as a result of which Chandmal owed a sum of Rs. 7212-12-9 to the firm. One Shri Suleman a clerk of the Civil Judge's Court was appointed as guardian ad litem of Shiv Bhagwan and he filed a written statement on his behalf denying his liability. He did not admit any of the allegations made in the plaint and asserted that he had no knowledge of the transactions in suit. Chandmal died during the pendency of the suit and his son Gulab Chand Was impleaded as a plaintiff in his place. The following are the relevant issues framed by the trial court: - Issue No. 2.- Is the plaintiff entitled to the price of 352 mds. of gur at Rs. 13/- per maund? Issue No. 4.- Did the plaintiff get the amount due to him as price of gur adjusted against his account with the Ganganagar firm? Issue No. 6 - Are Bhanwarlal and the legal representatives of the Hazarimal liable? The trial court held that the gur was sold for Rs. 3452-6-6 at Rs. 10-2-0 per maund as alleged by the defendants. It held that this amount was adjusted against losses incurred by the plaintiff in his dealings with the Ganganagar firm. Further that only Sohanlal and Surajmal were the partners of the firm Gauri Shankar Sohanlal and not the other defendants. Lastly it held that the suit was barred by limitation under article 47 of the Bikaner Limitation Act corresponding to article 89 of the Indian Limitation Act. Under article 47 of the Bikaner Act the period of limitation for a suit by a principal against his agent for movable property received by the latter and not accounted for was three years. Time begins to run when the account is, during the continuance of the agency, demanded and refused or, when no such demand is made, when the agency terminates. The grounds for this finding as given by the learned Civil Judge were two. One was that the gur was sold on 8-5-46 and time began to run from that date. It may be mentioned here that there is no evidence on record that any intimation was given to the plaintiff on 8-5-46 or on any other date that the gur had been sold. This part of the finding of the learned Civil Judge is thus based on no evidence. The other ground was that notice was sent by the plaintiff to the defendants on 15-6-46 and time began to run from that date. It is mentioned in the plaint in para 7 that the plaintiff sent a notice on 15-6-46. This is no doubt an admission of the plaintiff on which the defendants can rely. But there is no admission of the plaintiff to the effect that the notice was actually served on the defendants. On the contrary the defendants have denied that the plaintiff served any notice on them on 15-6-46. This part of the finding also is thus based on no evidence. In the result the trial court dismissed the suit. On appeal the learned District Judge decreed the suit. He held that Art. 107 of the Bikaner Limitation Act which corresponded to article 120 of the Indian Limitation Act was applicable. The period of limitation under this article is six years from the date when the right to sue accrues. Having heard the learned counsel for the parties I am of the opinion that article 47 of the Bikaner Act corresponding to article 89 of the Indian Act is applicable to the case and not article 107 corresponding to article 120 of the Indian Act as the suit is of the nature referred to under the former article. In the plaint it was alleged by the plaintiff that several demands were made by him but the defendants kept on asking for time and eventually made a refusal on 1-7-50. These allegations were denied by the defendants but no evidence was produced by the plaintiff to prove them. The contention on behalf of the defendants-appellants is that by virtue of section 3 of the Limitation Act it was for the plaintiff to prove that his suit was within time. The question which arises is as to whether the present suit was prima facie within limitation. That in turn leads to the question as to the party on whom the burden lies of showing either that the account was demanded and refused or the agency terminated beyond three years of the institution of the suit. It was held in the following two decisions that such a burden lies on the agent: Virayya V. Adenna (1), Khub Chand V. Chittar Mal (2 ). It was held in Jagir Singh V Dheru (3) that the burden of proof lies on the plaintiff in a suit against the legal representatives of the agent. In this view of the matter the suit against Bhanwarlal, Sohanlal and Surajmal is within limitation and the suit against the remaining defendants who are the legal representatives of Hazarimal is barred by limitation. The suit is accordingly dismissed against Dhanraj, Champalal, Jiwanmal and Shiv Bhagwan. As has already been mentioned above Suleman was appointed as guardian ad litem of Shiv Bhagwan in the trial Court. In the appeal the plaintiff did not implead Shiv Bhagwan as a minor under the guardianship of Suleman. An objection was taken before the appellate court that Shiv Bhagwan was not properly represented before it in the appeal. This objection was overruled by the first appellate court. That order is undoubtedly erroneous as the appointment of Suleman continued as he was never removed from guardianship by an order of the court. The decision in the first appeal is therefore not binding on Shiv Bhagwan. Civil miscellaneous appeal No. 23 of 1963 is accordingly allowed. As the suit against Shiv Bhagwan is being dismissed it is not necessary to remand the appeal against him for rehearing.
(3.) COMING now to the other findings of the learned Civil Judge the lower appellate court has accepted the finding that the gur was sold for Rs. 3452-6-6. But the other finding that the amount was adjusted towards losses incurred in the Ganganagar firm was not accepted by it. In order to prove the alleged transactions carried on by the plaintiff with the Ganganagar firm Surajmal defendant only produced the Khata of the Ganganagar firm. This Khata does not give details of all the entries. It refers to pages of the Naqal Bahi and Rokar Bahi. These two Bahis were not produced before the trial court. The learned Civil Judge however relied on the entries made in the Khata which were unsupported by the original entries made in the Naqal Bahi or the Rokar. The lower appellate court was of the opinion that the Khata was not admissible under sec. 34 of the Evidence Act. The contention on behalf of the appellants is that this finding is erroneous. The learned counsel for the respondent has supported the finding relying on the decision in Chandi Ram V. Jamini Kanta (4 ). The learned counsel for the appellants has on the other hand relied on the decisions in the Deputy Commissioner of Bara Banki V. Ram Prashad (5) and Mating Sit V. Ma Su (6 ). I am of the opinion that a Khata Bahi is certainly a book of account, and if it is maintained in the regular course of business it is admissible in evidence under sec. 34 of the Evidence Act. But what weight can be attached to the entries in the Khata when the original entries on which they are based are not produced is quite a different matter. The lower appellate court was of the opinion that no reliance can be placed on the entries in the Khata which have not been supported by corresponding entries in the Rokar and Naqal Bahi. I agree with this opinion. I accordingly hold that the lower appellate court rightly held that it has not been proved that any loss was incurred by the plaintiff in his dealings with the Ganganagar branch of the firm Gauri Shankar Sohanlal against which the amount of Rs. 3452/6/6 could have been adjusted. If it had been shown that the plaintiff incurred losses in the Ganganagar firm the defendants would certainly have been entitled to an equitable set off to the extent of the losses as held by their Lordships of the Privy Council in Official Trustee of Madras vs. Sundaramurthi (7 ). The next contention on behalf of the appellants is that there is no satisfactory proof on record that Hazarimal and Bhanwarlal were partners of the firm Gauri Shankar Sohanlal. The trial court held that Hazarimal and Bhanwarlal were not partners in this firm, but the appellate court held otherwise. The finding of the appellate court is one of fact and is duly supported by the evidence on record. It cannot be interfered with in second appeal. So far as Surajmal is concerned the case against him is proved by his own admission contained in the written statement and by the evidence produced by him in court. So far as Surajmal's admission in the written statement is concerned the contention on behalf of the appellants is that it is not open to the court to accept a part what he has alleged in the written statement and reject the rest. Reliance is placed in this connection on the following decisions: M. M. Essabhoy vs. M. Haridas and Gangaram vs. Hetram. In both the above cases the admission itself was a conditional one and it was held that a conditional admission in a pleading cannot be so dissected as to accept a part and reject the rest. It must be either accepted subject to the condition or not accepted at all. The allegation about the purchase of gur was made in para 4 of the plaint and was admitted by Surajmal in para 4 of his written statement unconditionally. The allegation that an account was sent upto Kartik Sudi 1, Smt. 2002 in which a credit balance of Rs. 9266/4/6 was shown in favour of the plaintiff and that the price of the gur was debited to him in| this account but the gur which had been purchased had not been accounted for in it was made in para 6 of the plaint. This allegation was admitted by Surajmal in para 6 of his written statement unconditionally. In para 13 of his written statement Surajmal alleged that the credit items of Rs. 9265/4/3 due in favour of the plaintiff in the account upto Kartik Sudi 1, Smt. 2002 and the credit item of Rs. 3452/6/6 which fell due to him on 8-5-46 by the sale of the gur were adjusted against losses incurred by him in the Ganganagar firm with the result that a sum of Rs. 7212/12/9 was due to the firm from the plaintiff. This was an independent allegation which did not qualify the admissions made in paras 4 and 6 of the written statement. I accordingly hold that the lower appellate court rightly decreed the suit against Surajmal for Rs. 3452/6/6 principal and Rs. 800/- interest. ;