Short Note : 1. This is plaintiff's appeal whose claim for Rs. 2,160 though decreed by the trial Court has been dismissed in appeal by the Additional District Judge, Ratlam. Held : It is not disputed that as per Ex. P-1 there was an agreement between the plaintiff and the defendant for the sale of 4,80,000 Birds for Rs. 1,920. Ex. P-1 itself makes it clear that instead of the defendants receiving the price of the goods the plaintiff was to make payment to the firm 'Hajarimal Manaklal at Ratlam' on which the defendants has drawn Hundi in the name of Ashafali and Brothers (another trade name under which the defendants were carrying on business). The plaintiff's case was that as per the contract between him and the defendants he paid Rs. 1,920 to Hajarimal (P.W.5) of the said firm at Ratlam, obtained the receipt for the payment’ made by him and handed over the receipt to the defendants. Further, according to the plaintiff, the defendants then gave physical delivery of five Tiparas of Bidi bundles and that these bundles were kept in the god own of the defendants for being taken away later and six bundles were to be delivered on some future dates. During the course of the trial, the plaintiff by his applications dated the September 2, 1959, January 7 and November 10, 1960, February 7, February 8 and February 10, 1961, made repeated prayers to the Court and noticed the defendants to produce their stock registers to verify as to whether any packets of Bidi bundles (known as Tiparas) were in fact handed over to the defendants. In reply to these applications and notice the stock register was not produced. It was only on 1-9-1961 that Wazirali (D.W.1) produced the bill book, the Bidi register and the Kachhi Rokad but not the stock register. It therefore, become clear that documents which ordinarily should have been in possession of the defendants were not produced. 2. The learned counsel for the respondents urged that such an adverse inference could not have been drawn against the defendants unless the plaintiff was to prove that any stock register as maintained by the defendants, and since such existing of stock register was not proved no question of adverse inference arose in this case. In my opinion, this contention is not, tenable. 3. In my opinion, this contention is not, tenable. 3. The defendants are manufacturers of Bidis and in a single transaction with the plaintiff they sold as many as 4,80,000 Bidis in this case. Any Bidi merchant manufacturing Bidis on such a large scale who in the ordinary course of business is expected to maintain accounts but he cannot be believed when he says that stock register of Bidis is not maintained by him. In these circumstances the inference drawn against the defendants in this case on account of non-production of stock register was fully justified. 4. There is yet another aspect of the case which, in my opinion, concludes the issue between the parties. According to the defendants the entire quantity of the goods sold by them to the plaintiff was delivered to the plaintiff on his promise to pay to the firm of Hajarimal Manaklal. Within six days of the sale transactions, the plaintiff served a telegraphic notice demanding delivery of the goods. Though the defendants denied that delivery of goods was due from them but even after the institution of the suit by the plaintiff the defendants did not make any claim in a Court of law for realising the aforesaid amount of Rs 1,920 from the plaintiff. If the defendants were not paid the price of the goods sold and delivered by them to the plaintiff, then there was no valid reason as to why they should not have pressed for their claim of the price of the goods by instituting a suit against the plaintiff. This conduct on the part of the defendant clearly goes to show that the defendants received the price of the goods through the firm Hajarimal Manaklal and retained the goods with them as alleged by the plaintiff. 5. It was then urged by the learned counsel for the respondents that once delivery of atleast five Tiparas was admitted by the plaintiff, then the present suit for refund of the price was not maintainable. It was also urged that in this second appeal findings based on appreciation of evidence should not be interfered with. So far as the first contention is concerned, no such plea was taken by the defendants in the trial Court. The defendant, therefore, cannot take such a new plea for the first time in this appeal. It was also urged that in this second appeal findings based on appreciation of evidence should not be interfered with. So far as the first contention is concerned, no such plea was taken by the defendants in the trial Court. The defendant, therefore, cannot take such a new plea for the first time in this appeal. So far as the second contention is concerned, it is true that ordinarily findings of fact should not be disturbed in second appeal but when it becomes apparent that these findings are based on a total mis-appreciation of evidence, then interference in second appeal would be fully justified. The trial Court on a consideration of the oral and documentary evidence given by both the parties had found it is a fact that even after receiving the payment goods were not given to the plaintiff. These findings could have been set aside only if they were based on mis-appreciation of evidence. In my opinion, the appreciation of evidence by the trial Court were justified and there was no ground for any interference in the appeal, before the lower appellate Court. Appeal allowed.