JUDGMENT
J.V. Gupta, J.
1. This is defendant’s second appeal against whom suit for declaration and injunction has been decreed by both the courts below.
2. Ram Singh, plaintiff, brought a suit on the allegations that the sales tax authorities had assessed the recovery of Rs. 4,450 from the business concern styled as Darshan Singh Ram Singh, Panipat. It was pleaded that the State wanted to proceed againstrhim for the recovery of the said amount on the ground that he was a partner and the said business concern was a partnership firm. It was alleged that the plaintiff had nothing to do with the said business concern which was neither a firm- nor was the plaintiff a partner. It was further pleaded that, in fact, the assessment was made against Darshan Singh, his brother, in his individual capacity and not against any firm styled as Messrs. Darshan Singh Ram Singh. Although the plaintiff was the brother of Darshan Singh but he had nothing to do with the business which his brother Darshan Singh was carrying on. The State contested the suit mainly on the ground that the civil court had no jurisdiction in the matter. It was also maintained that the plaintiff was a partner in the defaulter-firm. Both the courts below found that the civil court bad the jurisdiction to try the suit and that the plaintiff was not the partner of the firm known as Messrs. Darshan Singh Ram Singh and he had nothing to do with the same. With these findings, the suit was decreed.
3. Learned counsel for the defendant-appellant contended that the civil court had no jurisdiction to try the suit. The only remedy which the plaintiff had to seek was under the Sales Tax Act. In support of tin’s contention fie referred to a Division Bench judgment of this Court in R.S.A. No. 669 of 1972 (Haryana State v. Savitri Devi) decided on 4th December, 1973. It was further contended that it had been wrongly found that the plaintiff was not the partner of the defaulter-firm.
4. After hearing the learned counsel for the parties I do not find any merit in this appeal.
5. In the present suit, the only plea is that the plaintiff had nothing to do with the partnership firm called Messrs. Darshan Singh Ram Singh which has been assessed. The plaintiff has not challenged any assessment order in the present suit or the rights of the appellant-department to recover the tax assessed against Darshan Singh. His only grievance is that since he has nothing to do with the partnership firm he could not be held liable for the tax assessment and no recovery could be made against him. That being the situation, the jurisdiction of the civil court was not barred. In the judgment relied on by the learned counsel for the appellant-State, is discussed the entire case law in detail and there cannot be any dispute with the said proposition of law. In that case, it was found as of fact that the plaintiff had opened a current account with a bank and he was the pivotal figure and, thus, liable for the tax assessed against the firm. As regards the present case, on an appreciation of the entire evidence, it has been concurrently held that there is nothing on record to show that the plaintiff ever confessed before the sales tax authorities that he was a partner in the said firm. The department did not produce the diary allegedly recovered from the possession of Ram Singh, plaintiff. In the absence of that evidence, the courts below found that if that diary had been produced it would have shown that the plaintiff had no concern with the business called Messrs. Darshan Singh Ram Singh. It has also been observed by the lower appellate court that the evidence shows that Ram Singh did not appear at any stage before the sales tax authorities to challenge the action on merits and never represented that he had any interest in the business known as Messrs. Darshan Singh Ram Singh. This being a finding of fact could not be challenged in second appeal. Once it is found that the plaintiff had nothing to do with the assessee-firm, he could not be held liable for the recovery in question. Consequently, this appeal fails and is dismissed with no order as to costs.