The onus of proving the return of the ornaments was on the defendant, as it was the defendant who was in possession of the ornaments and who was alleged to have returned them.

KAPUR, J. - This is a plaintiffs appeal against the judgment and decree of Subordinate Judge, First Class, Gurgaon, dismissing the plaintiffs suit. The facts which have given rise to this appeal are, that on 24th May 1940, Baldev Sahai, plaintiff, borrowed Rs.10, 000 from the defendant, Nemi Chand, by pledging his ornaments. The interest according to the plaintiff was agreed at the rate of 0-6-0 per cent per mensem. On 18th March 1942, Rs.500 was paid by the plaintiff and on 1st October 1943, one Mutsaddi Lal P.W.5., paid Rs.400 and redeemed a gold "Hansali," weighing 11½ or 12 tolas. Plaintiff Baldev Sahai sold his land to one Sunder Lal for Rs.12,000 on 23rd September 1943. Out of this sum Sundar Lal paid to the defendant Rs.10, 000 on the same day which is evidenced by receipt P.W.1/1, printed at p.76 of the printed paper book. There is a dispute between the parties as to whether all the ornaments except one, were returned on the day when this sum was paid by Sundar Lal to Nemi Chand or were not returned. On 5th October 1943, a cheque Ex. D.W.2/1 for Rs.795-4-0 was given to the defendant, and thus the total amount due, Rs.11, 695-4-0, was paid off by the plaintiff to the defendant.

2. The plaintiffs case is that he pledged certain ornaments and borrowed Rs.10000 by pledging them. The defendant in his own hand prepared two lists of these ornaments and gave them to the plaintiff, and although payments had been made as given above, the ornaments were not returned to him. Some time in December 1943, the plaintiff sent a notice to the defendant and asked him to return the pledged ornaments to him. This is Ex. P/6 printed at p.79 of the printed paper book. The defendant states that he did reply to this notice through his counsel - a fact which the plaintiff denied in his plaint, but seems to have given up in his replication. On 10th January 1944, the plaintiff brought a suit for the recovery of the gold ornaments and in the alternative for Rs.41,591-4-0. He alleged that he pawned the ornaments, a list of which is given in para.2 of the plaint, weighing 448 tolas and 3 mashas out of which one piece of Hansali was returned. He further claimed that although the weight of the gold was 448 tolas and 5 mashas and there was besides the gold some precious stones and pearls worth about Rs.8000 which were all pawned with the defendant, the latter put the total weight at 340 tolas and an entry to that effect was made in the bahi of the defendant, that he had paid the whole of the principal amount and interest which was due to the plaintiff, that at the time of the payment of the last item, i.e., Rs.795-4-0 by cheque, the defendant said he had kept the ornaments at some concealed place and would bring them back and return to the plaintiff. But they were not so returned. The plaintiff claims a sum of Rs.41,591-4-0 valuing the gold at Rs.77 per tola which was the prevailing rate on 23rd September 1943, which comes to Rs.32,718 plus Rs.8000, the value of the pearls and precious stones.

3. The defendant denied the plaintiffs claim and pleaded that the weight of the ornaments pawned with him was not 448 tolas 3 mashas but was 250 tolas. The interest was fixed 0-6-0 p.c.p.m, but on 12th August 1942, as the debt had not been paid, the defendant informed the plaintiff that he would henceforth charge 0-7-9 p.c.p.m. as interest, The payments alleged in the plaint were admitted. But it was pleaded that on the day when Rs.10,000 were paid, the defendant returned the boxes containing the ornaments pledged except for his zanjir (gold chain) weighing about 15 tolas which was kept in pawn till Rs.795-4-0 the amount due on account of interest were paid, and when this sum was paid by means of a cheque the zanjir (gold chain) was returned that very day and nothing was left with the defendant. The rate of gold which was claimed at Rs.77 per tola by the plaintiff was also denied.

4. There was a replication by the plaintiff in which he reiterated his alleg