Decided on November 10,1972



- (1.) The defendants are the appellants in this appeal. Respondents filed the suit for recovery of Rs. 8,980-49 being the balance of unpaid purchase money due under the sale deed dated 12th September, 1968, with interest thereon at 51/2 per cent, per annum.
(2.) The plaintiffs sold the plaint schedule properties to defendants 1 and 2, being minors represented by their father and guardian, the 3rd defendant for a sum of Rs. 20,000. The defendants paid Rs. 5,000 as advance and Rs. 6,500 on the date of registration of sale deed. For the balance of Rs. 8,500 they executed a promissory note in favour of the plaintiffs promissing to pay the same with interest at 51/2 per cent, per annum. According to the case of the plaintiffs, the 3rd defendant met the father of the first plaintiff at Rajahmundry on 22nd July, 1969, requesting him to grant some more time to pay the amount due under the promissory note. On 24th July, 1969, the 1st plaintiff's father found that a bag containing the promissory note, executed by the defendants along with some other promissory notes was missing from his room. He suspected the third defendant to be the culprit. He gave a police complaint on 24th July, 1969. Later on when a registered notice was issued on 7th August, 1969 calling upon the defendants to pay the suit amount, the 3rd defendant gave a reply stating that the amount due was paid to the first plaintiff's father in the presence of the second plaintiff in April, 1969, and that the discharged promissory note, after removal of the stamps affixed thereon, was handed over to the third defendant. Later on the plaintiffs gave a further report to the police on 21st August, 1969, stating that the third defendant has stolen the suit document from the custody of first plaintiff's father. As the police have not taken any steps to trace out the promissory note, the plaintiffs, therefore, filed the suit for recovery of suit amount together with interest claiming a charge on the suit property, as the suit promissory note was executed for the balance unpaid purchase money under a sale deed.
(3.) The defendants in their written statement denied the plaint allegations. They stated that to a call from the police, the third defendant had shown the discharged promissory note to them, that the third defendant had paid away Rs. 8,800 on or about second week of April, 1969 in full satisfaction of the suit promissory note to the plaintiffs through the second plaintiff, with the monies realised by the sale of Virginia tobacco and borrowings made from others by the 3rd defendant. They also stated that the first plaintiff's father with the consent of the plaintiffs removed the revenue labels on the promissory note and informed the defendants that such lemoval of revenue labels indicates full discharge and the defendants believed the suggestion and accepted the same faithfully and agreed for the same and took return of the suit promissory note as a voucher for the sale deed. In as much as it has been so discharged, they deny the right of the plaintiffs to claim money over again. They also stated that the 3rd defendant on behalf of his wife entered into an agreement to purchase Uppalurivari Chalka land with the first plaintiff's fatner at or about the time of discharge of the suit promissory note for a sum of Rs. 60,000 and paid Rs. 3,000 as advance to the first plaintiff's father, but the said sale fell through on account of first plaintiff's father's default. In these circumstances they asked for the dismissal of the suit.;

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