1. Dammalapati Subba Rao, the plaintiff in O.S.No.127/84 on the file of Subordinate Judge, Machilipatnam, had preferred this Appeal being aggrieved of the relief of refund of consideration only in stead of ordering specific performance.

2. The said suit was filed praying for the relief of specific performance of contract of sale dated 25-7-1982 executed by 1st defendant for himself and as guardian of defendants 2 and 3 in favour of the plaintiff for Rs.28,350/- in respect of the plaint schedule land, or in the alternative to pay the plaintiff a sum of Rs.35,265/- towards principal and interest @ 12% per annum and for costs. The learned Subordinate Judge, Machilipatnam after settling the Issues and in the light of the respective pleadings of the parties, recorded the evidence of P.W.1 to P.W.3, D.W.1 to D.W.4, marked Exs.A-1 to A-7 and Exs.B-1 to B-7 and came to the conclusion that the relief of specific performance to be negatived, but however granted the decree for Rs.28,350/- with proportionate costs against the 1st defendant only and the rest of the plaintiff’s claim was dismissed without costs. The suit against defendants 2 and 3 was dismissed without costs. Aggrieved by the same, this appeal had been preferred.

3. The 1st respondent died and A.S.M.P.No.12027/2004 was filed to bring on the legal representatives of the 1st respondent as other legal representatives of the 1st respondent and the application was ordered on 8-12-2008 and respondents 4 to 6 were brought on record. It is needless to say that the sons of respondents 1, 2 and 3 had been already on record.

4. The letter dated 30-11-2004 addressed by the learned District Judge, Krishna, Machilipatnam would go to show that in view of the Judgment books being eaten away by white ants, the learned Judge instructed the staff concerned for reconstruction of the draft judgments which were eaten away by white ants with the available fair judgments. The said office had specified that the originals of Exs.A-2 to A-6 and Exs.B-2 to B-7 were already destroyed by the lower court and hence this Court directed to furnish photo copies or Xerox copies available to this Court. Accordingly, records of Exs.A-2 to A-6 and Exs.B-2 to B-7 called for from the respective Advocates of the court below and the same were sent by the learned District Judge on 30-11-2004 vide Dis.No.6826 dated 1-12-2004. Even on verification it was noticed that those copies relating to Exs.A-2, A-7 and B-4 are not traceable. Hence on 22-12-2008 the respective Counsel had been directed to take steps to place the copies of the documents which are being relied upon by the parties before the Court and since the said copies had been placed before this Court, the Appeal had been taken up for final hearing and the same is being disposed of finally.

5. Pleadings of the parties:

Averments made in the plaint:

It was pleaded that the 1st defendant is the father of defendants 2 and 3. The 1st defendant for himself and as guardian of the defendants 2 and 3 and for the benefit of the joint family of the defendants 1 to 3 to discharge the debts payable to Sri Chinta Appa Rao and Sri Ravi Rambabu payable by the defendants 1 to 3, agreed to sell the extent of Acs.3-15 of land belonging to the defendants in the village of Ayyavari Rudravaram at the rate of Rs.9000/- per acre for a total sum of Rs.28,350/-. The 1st defendant for himself and as guardian of defendants 2 and 3 executed a contract of sale in favour of the plaintiff on 25-7-1982. Accordingly the plaintiff discharged the pronote debts payable to Sri Chinta Appa Rao and Ravi Rambabu to the tune of Rs.27,560/- and the balance of sale consideration of Rs.790/- was paid to the defendants as mentioned in the agreement of sale. Thus the plaintiff paid the entire sale consideration amount of Rs.28,350/- to the defendants as agreed. It was also pleaded that as the plaint schedule property written statement delivered to the plaintiff, the plaintiff had been in the p