HIGH COURT OF UTTARANKHAND AT NAINITAL FIRST APPEAL NO. 105/2005 Himmat Singh …..Appellant Vs. District Judge, Bageshwer & other ….Respondents 8.4.2008 Hon’ble Rajesh Tandon, J. Heard Shri B.S. Adhikari, counsel for the appellant and Shri Dinesh Chauhan, counsel for the respondent no. 2. 2. By the present first appeal filed under Section 28 of Hindu Marriage Act, the appellant has prayed for setting aside the judgment & Order dated 5.7.2005 and decree dated 18.7.2005 passed by the District Judge, Bageshwar in O.S. No. 1 of 2005. 3. Briefly stated, a suit was filed by the plaintiff stating therein that she was married to Himmat Singh in the year 1993 and later on the marriage was dissolved by the consent of the parties. A sum of Rs.10,000/- towards alimony was granted to the plaintiff. It has been alleged that the defendant has not returned the gold jewelry of the plaintiff to the extent of 75 gm which was valued to the extent of Rs. 48,000/-. The plaintiff has sent a notice to the 2 defendant but of no avail, hence, the present suit has been filed. 4. A written statement has been filed by the defendant admitting the marriage, dissolving of marriage and grant of alimony to the extent of Rs. 10,000/-. It has been submitted that the plaintiff has taken the gold jewelry at the time of leaving the matrimonial house. The suit has been filed on the basis of wrong facts and the same is liable to be dismissed. 4. On the pleadings of the parties, the trial court has framed the following issues:- 1. As to whether the claimant is entitled to recover a sum of Rs. 48,000/- which is an amount for the gold to the extent of 75 gms. as alleged? 2. As to whether the suit is barred by time as the same is beyond time as alleged in paragraph 17 of the written statement? 3. To what other relief the claimant is entitled to? 5. The claimant has examined herself as P.W.1, Dham Singh as P.W.2 and Bishan Singh as P.W.3. Towards the documentary evidence, the plaintiff has produced the copy of judgment passed in the proceedings under Section 125 of Cr.P.C., copy of dissolving of marriage and copy of notice demanding the ‘stridhan’. 3 6. The defendant has examined himself as D.W.1, Kishan Singh as D.W.2 and Smt. Anandi Devi as D.W.3. The defendant has not led any documentary evidence. 7. While deciding as to whether the claimant is entitled for recovery of Rs. 48,000/-, the trial court has come to the conclusion that the defendant has not returned the jewelry in question to the plaintiff and the plaintiff is entitled for recovery of Rs. 48,000/- from the defendant. The trial court has taken into consideration the evidence, oral as well as documentary, available on record and has recorded the findings as under:- “foi{kh }kjk uksfVl dk tks fyf[kr mRrj fn;k x;k gS vkSj tks mlds ,oa mlds xokgksa dk c;ku og lc bl ckr dks nf’kZr djrk gS fd rqylh nsoh ds firk }kjk vU; tsojkr Hkh fn;s x;s Fks vkSj bl Lrj ij ;kph ,oa mlds xokgksa dk dFku fd 75 xzke lksus ds tsojkr ;kph dks mlds firk }kjk fn;k x;k Fkk] bu ifjfLfkfr;ksa esa fo’okl ds ;ksX; izrhr gksrk gS vkSj Ik=koyh ij fo|eku Ik{kdkjksa dh izys[kh; ,oa ekSf[kd lk{; ds vk/kkj ij ;gh rF; ifjyf{kr gksrk gS fd foi{kh us ;kph ds firk }kjk fn;s x;s L=h/ku dks ftldk mYys[k okn Ik= esa gS] okil ugha fd;k gS A ,slh fLFkfr esa ;kph foi{kh ls tsojkr ds ewY; 48]000@& #0 ikus dh vf/kdkjh izrhr gks jgh gSA” 8. While deciding with regard to the suit being time barred, the trial court has come to the conclusion that the suit is well within time and the same is not time barred. 4 9. On the basis of the aforesaid, the trial court has decreed the suit of the plaintiff for recovery of Rs. 48,000/- from the defendant. 10. I have perused the record. I find no illegality and infirmity with the findings recorded by the trial court. The appeal, therefore, lacks merit and is liable to be dismissed. 11. Consequently, appeal is dismissed. No order as to costs. (Rajesh Tandon, J. ) 8.4.2008 Avneet