By the Court.—Heard Sri Rahul Sripat, learned counsel for appellants, Sri Saral Srivastava, Advocate, for respondent No. 17 and Sri R.P. Agarwal, Advocate for respondent No. 52.

2. This is plaintiff-appellants’ appeal, filed under Section 96 Civil Procedure Code arising from judgment and decree dated 13.11.2003 and 27.11.2003, passed by Sri Vigyan Ram Misra, VIIIth Additional District & Sessions Judge, Varanasi, dismissing plaintiff-appellants’ (hereinafter referred to as ‘plaintiffs”) Original Suit No. 409 of 1993. Aforesaid original suit was instituted by plaintiffs in the Court of Civil Judge, Varanasi stating that plaintiffs are members of Joint Hindu Family, of which plaintiff 1 is Manager, plaintiff 2 is wife of plaintiff 1 and plaintiffs 3 and 4 are sons and plaintiffs 5 and 6 are daughters in law. Plaintiffs in due course of business purchased shares of reputed companies and sold from time to time through sub-brokers and brokers. They purchased a large number of shares detailed in Annexure 1 to plaint, in the names of plaintiffs, individually and jointly.

3. Defendants 2 to 4, commenced their business in the name of firm M/s Smart Money Financial Services having Branch Office at D 52/19, Rama Devi Katrara, Luxa, Varanasi, and Head Office at 120/533, Shivaji Nagar, Kanpur. Defendants 2 to 4 represented themselves as partners of defendant 1 and used to sit in Varanasi office. Relying on their representation, plaintiffs delivered certain shares for sale through their Principal, in Stock Exchange, and for that purpose even transfer deeds of shares were signed and handed over by plaintiffs to defendants 1 to 4. Defendants 1 to 4 made some payments promptly and in this way got faith of plaintiffs and other persons. Subsequently, large number of shares as detailed in Annexure 1 to plaint were handed over to defendants 2 to 4 alongwith transfer deeds and the same were sold by them but sale consideration was not paid to plaintiffs, which valued about sixteen lacs and odd. Defendants 2 to 4 obtained delivery of share certificates fraudulently and without paying sale consideration of shares belong to plaintiffs absconded from their office and have misappropriated the said amount.

4. Plaintiffs filed suit seeking following reliefs :

“(a) A decree of prohibitory injunction be passed in favour of the plaintiffs against all the defendants, restraining them not to transfer and retransfer of the shares mentioned in Annexure 1 in any other name or names and retaining them the name of the plaintiffs.

(b) A declaratory decree be passed that plaintiffs are the real holders of the share certificates mentioned in Annexure 1 of the plaint and they are entitled to get back their share certificates in their possession.”

5. Defendant 2, appeared and contested suit by filing a written statement. It denied any dealing of share transfer with plaintiffs. In the additional pleas it was pleaded that defendant had no concern with plaintiffs alleged shares or their sale and purchase as alleged by plaintiffs. The entire story set up by plaintiffs is conjectural and based on surmises. No fraud has been committed by defendant 2 and it is also incorrect that defendants 2 to 4 opened a Firm in the name of defendant 1. Defendant 2, had no concern with defendant 1 and never dealt or engaged in business with defendant 1. Defendant 4 never resided in House No. D48/143 C, Misir Pokhara, Varanasi, which belong to defendant 2. There was no promise and no business transaction between defendant 2 and plaintiffs, as alleged in the plaint. Defendant 2, in fact, himself purchased some shares from defendant 1 through Dinesh Kumar Sharma, defendant 4, and relationship was that of client and sub broker. Defendant 2, has otherwise no relation with defendants 1 and 4. It is also denied that defendant 2 made any payment to plaintiffs at any point of time.

6. Besides, suit was also contested by defendants 12, 52, 53, 56 and 57 by filing their separate written statement