CHENNAKESAV REDDY, J.

( 1 ) THIS appeal by the defendant under Clause 15 of the Letters Patent is directed against the affirming judgment of our learned brother M. Ramachandra Raju, J. , in C. C. C. A. No. 183 of 1975 preferred against the decree of Second Additional Judge, City Civil Court, Hyderabad, in O. S. No. 211 of 1970. The respondent-plaintiff filed the suit to recover the possession of the land of an extent of about 11,000 sq. Yards, comprised in Survey No. 142, in Amberpet, Hyderabad Urban Taluq, or in the alternative to recover damages of a sum of Rs. 11,000 with interest at 9% per annum. The trial Court decreed the suit for possession of the suit land and the appeal preferred by the defendant was also unsuccessful Hence this appeal.

( 2 ) THE material facts giving rise to the litigation between the parties are not much in dispute. The plaintiff executed an agreement of sale, Ex. A-1, dated 6-8-1963 agreeing to sell the suit land to the defendant for a sum of Rs. 11,000. Under the said agreement he received a sum of Rs. 6,000 from the defendant and put the defendant in possession of the suit land. According to the defendant, he subsequently paid a sum of Rs. 4,000 to the plaintiff and obtained Ex. B-5, receipt dated 13-7-1970 but the plaintiff denied that he received the said amount, There were also some other points of controversy between the parties as to the extent of land agreed to be sold and the time for payment of the entire amount and the performance of the contract by the defendant. But the main ground on which the case of the plaintiff rested was that the contract of sale Ex. B-1 was frustrated and it became impossible of the performance due to the supervening Act, namely, the prohibition against any alienation enacted in the Andhra Pradesh Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972. The trial Court held, on a careful assessment, of the evidence on record that the actual area agreed to be sold to and put in possession of the defendant was 8,470 Sq. Yards, and time was not the essence of the contract. Therefore, the trial Court found that the defendant did not commit any breach of the agreement of the sale by not paying the balance of consideration amount within the stipulated lime. As regards the amount claimed to have been paid by the defendant to the plaintiff under Ex. B-5 it held that the claim was false and that the defendant paid only a sum of Rs. 6,000 and no further amount. The Court however held that the suit agreement had become frustrated on account of the subsequent legislative prohibition against alienation enacted by the Andhra Pradpsh Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972 and decreed the suit for possession. In the appeal preferred by the defendant, only two points were urged before our learned brother, M. Ramachandra Raju, J. viz. , (1) whether the defendant paid the further sum of Rs. 4,000 under the agreement of sale over and above the amount of Rs. 6,000 which was admittedly paid, and (2) whether the suit agreement of sale had become frustrated on account of the provisions of the Andhra Pradesh Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972. On the first point, our learned brother held agreeing with the trial Court that there was no payment made under Ex. B-5 as alleged by the defendant. On the second point, it was held that the suit agreement had become impossible of performance and there was frustration of the contract entered into between the plaintiff and the defendant. However, the learned Judge having, regarding the admission of the plaintiff that he received a sum of Rs. 6,000 under the contract, granted a decree for possession subject to the condition that the plaintiff should refund the sum of Rs. 6,000 to the defendant which she admittedly received under the agreement of sale from the defendant. Subject to the said variation in the decree the appeal was dismissed.

( 3 ) IN this appeal, the learned counsel fo

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