JUDGMENT
S. Ashok Kumar, J.
1. The defendants 2 to 8, legal heirs of the deceased sole defendant are the appellants in this second appeal.
2. The plaintiff filed the suit for recovery of balance sum from the defendant due under the promissory note. According to the plaintiff the defendant executed a promissory note on 25.1.1988 for a sum of Rs. 12,000/= agreeing to repay the said sum with 12% interest. The defendant also purchased some lands from the plaintiff. For which, sale agreement was written on 22.1.1988 and on 25.1.1988 the same was registered. The sale consideration was fixed at Rs. 30,100/=. The defendant only paid 18,100/= and for the balance the said promissory note has been executed by him only on his advice. Thus the promissory has been executed only for the balance of sale consideration. Since the defendant failed to pay the balance, the plaintiff filed the suit for a sum of Rs. 15,600/= with interest.
3. The defence put forward by the defendant is that the suit promissory note has been executed without any consideration. Even on the date of registration, the defendant has paid the entire sale consideration of Rs. 30,100/=. Since the plaintiff permitted the defendant to give the land on lease for a sum of Rs. 12,000/= per year, on the advice of the plaintiff, the defendant has executed the suit promissory note. Thus the suit promissory note has been executed only for the lease amount.
4. In the reply filed by the plaintiff, he has denied the averment that the suit promissory note has been executed only for the lease amount since he has never accepted to give the land on lease and never demanded the amount of Rs. 12,000/=.
5. On the above pleadings and on hearing the learned Counsel appeared on either side and on a perusal of the evidence both oral and documentary, the trial court decreed the suit. On appeal, by the defendant, the first appellate court also concurred with the findings of the trial court and dismissed the first appeal. As against the concurrent findings of the courts below, the defendant has preferred this Second Appeal.
6. The following substantial question of law was framed at the time of admission of the Second Appeal:-
Whether in the face of the specific recital in the sale deed Ex.B.1 that the entire consideration was paid, the learned District Judge was justified in holding that Ex.A.1 was executed for the balance of consideration under Ex.B.1
7. Learned counsel for the appellants/defendant contended that the plea of estoppel has not been properly considered by the first appellate court. The plaintiff has not come to court with clean hands. In Ex.B.1, there is a recital that the entire sale consideration has been received and both the courts have wrongly concluded that the suit promissory note has been executed for the balance sale consideration of Rs. 12,000/=. Learned counsel for the appellant also contended that as per Section 118 of the Negotiable Instruments Act, when the defendant has proved the contrary, then the burden shifts to the plaintiff. P.W.1 also admits in his evidence that the suit promissory note has not been written for receipt of any amount.
8. On the other hand, learned Counsel for the respondent/plaintiff would contend that the defendant has admitted the execution of the suit promissory note and therefore the presumption is correctly drawn by the courts below. Both the courts on a consideration of both oral and documentary evidence concurrently found that the defendant has not proved the lease with the plaintiff.
9. The factual matrix as to the execution of the sale deed and the suit promissory note are not in dispute. The defendant only deny the plaintiff’s claim that the same has been executed for the balance sale consideration of Rs. 12,000/= but it is executed in lieu of the lease amount. It is the recital in Ex.A.1 that a sum of Rs. 12,000/= has been given to meet the family expenses. But in the plaint it is averred that out of the sale consideration of Rs. 30,100/= only Rs. 18100/= was given by the defendant and only for the balance of Rs. 12,000/= the promissory note has been executed. In his evidence, P.W.1 has also deposed in that manner. Even in Ex.B.1 sale deed the receipt of 30,100/= has been recited. But in Ex.A.1 the receipt of Rs. 12,000/=\ has been mentioned. P.W.2, who has signed as witness in Ex.A.1 promissory note also supports the case of the plaintiff. He has also clearly denied the averment of the defendant the promissory note has been executed for the lease amount.
10. Though D.W.1 to 3 have pleaded the theory of lease, but the same has not been proved by any acceptable material. The first appellate court referring to the decision reported in 64 LW. 475 (Venkata Reddy v. Nagi Reddy) held that though there is difference between the recital in the Exs. A.1 and the plaint pleadings, supported by the evidence, on a perusal of the evidence we can come to the conclusion that Ex.A.1 suit promissory note is supported by consideration and there is no reliable material to hold that the same has been executed for any lease amount. D.W.1 has also accepted the execution of Ex.A.1 promissory note.
11. The first appellate court also observed that even though the defendant has initially sent the legal notice and therefore his plea of lease is to be accepted, but he has failed to prove his case and there is also no such recital to the said effect in Ex.A.1. The defendant has also not produced any Lease Agreement entered with the plaintiff to prove his case. For reasons assigned by the first appellate court, the only substantial question of law is answered against the appellants.
12. In the result, the Second Appeal is dismissed confirming the judgment and decree of the first appellate court. No costs.
