' This first civil appeal under section 96 of the C .P.C. Is directed against the Judgment and decree of 2nd Senior Civil Judge, Hyderabad, decreeing the suit of the respondent/plaintiff in the sum of Rs,73,100 with proportionate costs. The following facts may be stated here which are not in dispute.
2. The appellant sold residential plots bearing Nos.A-34/29 and A-34/30 (now numbered as A- 34/221 and A-34/222, through a registered sale-deed for Rs,60,000 executed on 14-10-1965 in favour of the plaintiff/respondent. It appears that in the year 1970 the Custodian of Evacuee Property declared the property sold by the appellant to the respondent as evacuee property whereupon it was disposed of by the Settlement Department. The respondent/plaintiff instituted a suit against the appellant claiming refund of the consideration amounting to Rs,60,000 paid under the aforesaid sale-deed alongwith other expenses which are shown in the schedule filed in the suit.
The total amount shown in the schedule to the suit was Rs,1,12,500 out of which the plaintiff claimed in the suit a sum of Rs,1,05,000. After recording evidence in the suit the trial Court allowed the claim of the plaintiff/respondent for return of the consideration of Rs,60,000, Rs,2,400 towards stamp and registration, Rs,4,500 towards filing and levelling of plot and Rs,6,200 towards Chowkidar charges for the period from October, 1965 upto date of the filing of suit. In this way the plaintiff/respondent was awarded a sum of Rs,73,100 as a decree in the above suit. The learned counsel for the appellant/defendant does not dispute the amount decreed by the trial Court but only contends that as the consideration mentioned in the registered sale-deed has failed the trial Court while ordering for refund of the sale consideration and other expenses to the respondent/plaintiff should have put back the parties in the same position in which they were at the time of entering into sale- deed. It is not disputed before me that under the registered sale-deed, dated 14-10-196 the appellant put the respondent in the possession of the suit property. Since the consideration mentioned 'in the agreement of sale has failed and the respondent/plaintiff has sued for return of consideration the trial Court while decreeing the suit of the plaintiff for the above amount should have ordered for restitution of possession which was passed on to the respondent/plaintiff under the aforesaid registered sale-deed which was found to be void by the learned trial Court as result of declaration of the property as evacuee property. Mr. Mustaf Lakhani, learned counsel for the respondents contends that as there was no issue framed in the suit regarding restitution of the parties t the same position in, which they were before execution of the sale-deed, the parties had no opportunity to contest this point and lead evidenc thereto. As the restitution of the possession to the appellant was natural consequence of the cancellation of the sale-deed and refund of sale consideration paid thereunder it was necessary for the trial Court to have addressed itself while granting the decree for refund of the amount paid by the plaintiff to the appellant under the registered sale-deed. This important aspect of the case was neither noticed nor decided by the trial Court, I, therefore, accept this appeal, set aside the judgment and decree of the trial Court and remand the case back to the trial Court to determine the question regarding restitution of r the possession of the property to the appellant, as a result of cancellation of the sale. The trial Court may frame appropriate issue in this regard and if necessary allow the parties to, lead evidence on this point. It is however, clarified that in so far the decree for Rs,73,100 passed by the trial Court in favour of the respondent is concerned it is maintained. There will be no order as to costs in the circumstances of the case.