KATRAGADDA SATYANARAYANA Vs. PALANCHU BABU RAO

JUDGEMENT

(1.) THIS appeal is filed by the unsuccessful plaintiffs in O. S. No. 48/86 on the file of Subordinate Judge, Gudiwada. Defendant in the said suit is respondent. Appellants-plaintiffs instituted the said suit praying for the relief of recovery of rs. 35,062-50 ps. , towards unpaid purchase money, for subsequent interest and for costs with a charge over the plaint schedule property.

(2.) ON the strength of the respective pleadings of the parties, the learned subordinate Judge having settled the issues, recorded the evidence of P. W. 1 - the 1st plaintiff, D. W. 1-the defendant, D. W. 2 and d. W. 3 and marked Ex. A. 1 to Ex. A. 8 and ex. B. 1 and came to the conclusion that the plaintiffs are not entitled to the reliefs prayed for and ultimately dismissed the suit but under the circumstances without costs. Aggrieved by the same, the present appeal is preferred.

(3.) SRI Mallikarjuna Rao Kondasani, the learned Counsel, had taken this Court through the evidence of P. W. I, D. W. 1, d. W. 2 and D. W. 3 and also the documentary evidence - Ex. A. 1 to Ex. A. 8 and Ex. B. 1 and would maintain that it is highly improbable that the defendant - D. W. 1 would not have taken away the promissory note having paid the total amount and the evidence of d. Ws. 2 and 3 cannot be believed since they are interested witnesses and inasmuch as the plea of discharge of the remaining unpaid money had not been established by acceptable proof, the appellant-plaintiffs are entitled to recover the said unpaid money in the light of Section 55 (4) (b) of the transfer of Property Act, 1882. The counsel also pointed out that the evidence of D. Ws. 2 and 3, if carefully examined, these witnesses had not clearly deposed relating to the alleged discharge. The counsel also would maintain that even otherwise the findings recorded by the learned Judge that the suit should have been instituted on the lost promissory note and the remedy by way of the present suit cannot be maintained, also cannot be sustained. The Counsel also would maintain that when the sale deed was executed by all the plaintiffs, to hold that the suit is bad for misjoinder of parties also cannot be sustained.