JUDGMENT Ghulam Hasan, C.J. and Kidwai, J. - This second appeal arises out of a suit brought by the Appellants for possession of property mortgaged to them by respondent No. 1 on the 22nd September, 1926. Respondent No. 2 is the daughter of Respondent No. 1 and is a donee of a part of the property. 2. The suit, as originally framed, was a pure and simple suit for possession according to the terms of the mortgage deed. The Defendants-Respondents pleaded that the mortgage was totally invalid and illegal inasmuch as the Defendant No. 1 had no right to execute it since the entire mortgage property was ancestral and had been transferred for execution to the Court of the Collector of Hardoi in execution of two decrees in favor of Cheda Lal and Ram Charan. No replication was filed but in the oral pleadings the Plaintiffs stated, I deny that the property is ancestral. The plea that the deed is invalid is not open to the executants. The mortgage was executed with the sanction of the Collector. In case it is found that the mortgage deed is invalid I am entitled to a refund of my money u/s 66 of the Contract Act. 3. Several issues were framed by the trial Court, with which we are not concerned, but, among other findings, the trial Court came to the conclusion that the whole of the property had been transferred to the Collector in execution of the two decrees alleged by the Defendants; that the property was ancestral; that the sanction of the Collector for execution of the mortgage had not been taken and that relief could not be granted u/s 66 of the Indian Contract Act in this case because this is a suit for possession on the basis of the mortgage deed, and the Plaintiffs have not given the amount due in the plaint They have not paid the court-fee which should have been payable if the amount due had been claimed. The Plaintiffs' Counsel took the plea that the amount should be awarded, but he did not apply for amendment of the plaint. Under these circumstances this relief should rot be awarded in this suit. 4. The Plaintiffs' Counsel took the plea that the amount should be awarded, but he did not apply for amendment of the plaint. Under these circumstances this relief should rot be awarded in this suit. 4. The Court then referred to two decisions of this Court, viz., Bhola Nath v. Mahrani Kuar 1936 O.W.N. 498 and Babu Raja Mohan Manucha v. Manzoor Ahmad Khan 1937 O.W.N. 784 and thought that this was not a fit case in which the relief should be awarded. 5. The Plaintiffs-Appellants went up in appeal to the District Judge of Hardoi, who upheld all the findings of the Civil Judge, except that he found that all the property mortgaged was not under the control of the Collector but that a 15 biswansis share in village Kakrauwa out of the mortgaged property was not being proceeded against in the Collector's Court and consequently the mortgage of this 15 biswansis share was valid. On the question of Section 65 of the Indian Contract Act he upheld the finding of the Civil Judge and he further held that since it was open to the Plaintiffs to seek their remedy in a separate suit he would not interfere with the discretion exercised by the Civil Judge in refusing to grant the relief under this section in the present suit. 6. As a result of his findings he modified the decree of the Civil Judge to the extent of granting a decree for possession over 15 biswansis share of village Kakrauwa. 7. Both parties are dissatisfied and the Plaintiffs have filed an appeal in this Court while the Defendant's have filed a cross-objection. It will be convenient to dispose of the cross-objection first. 8. The cross-objection raises a plea that the learned District Judge should have held that Ram Charan's decree in which the whole of the property mortgaged had been attached, was also transferred to the Court of the Collector for execution and it is said that the learned District Judge has misread the documentary evidence on the record in coming to the conclusion that that decree was not transferred. Reliance was placed on Exs. A-8, A-9 and A-10 to show this. We have considered those documents and we are of opinion that the learned District Judge's interpretation of them is correct. Reliance was placed on Exs. A-8, A-9 and A-10 to show this. We have considered those documents and we are of opinion that the learned District Judge's interpretation of them is correct. None of these exhibits shows that the property attached in Ram Charan's decree was transferred to the Collector for execution. Therefore, the only property with which the Collector was dealing was the property which had been transferred to him in the execution case of Chheda Lal. The cross-objection has, therefore, no force and must be dismissed. 9. Coming now to the appeal, three points were placed before us by the Learned Counsel for the Appellants, viz. (1) that the property was not ancestral (2) that the sanction of the Collector had been obtained and (3) that in any case a decree for restoration u/s 65 of the Indian Contract Act should have been passed. As to the first ground, it is admitted that in view of the decisions of this Court it cannot now be challenged that the property was ancestral, since it has come down from the original grantee for three generations and has been dealt with by each successive holder as his absolute property. 10. The second question is purely a question of fact and cannot be challenged in second appeal, nor do we find anything on the record which would induce us to take an opinion different from that of the lower Courts. The third question remains and it is argued that the learned lower Courts would not have come to the decision at which they arrived, had they had before them the decision of their Lordships of the Privy Council reported in Babu Raja Mohan Manucha v. Babu Manzoor Ahmad Khan (1948) 70 I.A.I. which was a decision given in appeal from the judgment of this Court reported in 1937 O.W.N. 784. In that case the plea was taken while the case was before the Chief Court that, if the mortgages were held invalid by reason of the operation of paragraph 11 of Schedule III of the CPC Code, at least a refund of the consideration money should be allowed u/s 65 of the Indian Contract Act, and the learned Judges deciding the case held at page 790 of the report that, in view of the fact that the relief u/s 65 had not been claimed in the plaint or in the grounds of appeal, it was not a fit case in which such a relief should be granted in the appeal. When the matter went up before their Lordships of the Judicial Committee their Lordships said at page 13: With all due respect to the Chief Court, their Lordships think that their attitude towards the question of pleading was unduly rigid. A Defendant who when sued for money lent pleads that the contract was void can hardly regard with surprise a demand that he restore what no received there under. What defence the Respondents can have desired to make on this aspect of the case is not revealed by anything in the judgment of the Chief Court apart from the question of limitation, with which their Lordships have already dealt, and from the contention that Section 65 cannot apply where there is a transfer of property and not a mere agreement. There is no reason to apprehend that by allowing the Appellants to obtain relief u/s 65 any injustice to the Respondents can result. On the contrary, prima facie it is hardly just that the tights of the parties in respect of the transaction of August 13,1919, should be dealt with in part and in part postponed. Though it is a matter of discretion, a result so inconvenient needs to be justified by said lesson and their Lordships seem sufficient (sic) to prevent the restitution being ordered in this case. 11. must be remembered that the case out of which that appeal arose was a suit by the mortgagees for their mortgage money. Though it is a matter of discretion, a result so inconvenient needs to be justified by said lesson and their Lordships seem sufficient (sic) to prevent the restitution being ordered in this case. 11. must be remembered that the case out of which that appeal arose was a suit by the mortgagees for their mortgage money. Their right to receive that money had been determined the amount due to them had also been determined and the only question, which had been decided against them was that the mortgage in their favor was invalid because the property mortgaged could net be dealt with without the sanction of the Collector. Full court-fee had been paid on the amount claimed. In the present case the position is quite different. Not only do the Plaintiffs not indicate the amount due but there is no claim for payment of any money at all and court-fee has only been paid as in a suit for possession. It is no doubt true that an oral plea of the right to receive a refund u/s 65 of the Indian Contract Act was taken and an issue on this point was also framed of this, however, nothing further was done by the Plaintiffs to indicate how much was due to them, that is to say for what sum they claimed a decree, nor was any attempt made to amend the plaint which could easily have been done at that stage by praying for an alternative relief, and should we even desire to grant the relief u/s 65 of the Contract Act, it is not possible for us to do so at this stage because even now we do not know what is the amount which the Plaintiffs claim as due to them. A further difficulty has been created by the fact that the appellate Court has held that the mortgage is only partly bad and that it remains valid in so far as the 15 biswansis share of village Kakrauwa had been hypothecated. It is doubtful whether Section 65 would be applicable in these circumstances. We do not wish to express any opinion on that point because it is unnecessary for the purposes of this case to do so and neither Counsel has placed any argument before us on the question as to whether Section 65 applies when an agreement is discovered to be partly void. We do not wish to express any opinion on that point because it is unnecessary for the purposes of this case to do so and neither Counsel has placed any argument before us on the question as to whether Section 65 applies when an agreement is discovered to be partly void. We would, however, like to point out that even if Section 65 does apply to such a case, it would be necessary to ascertain to that extent the agreement is void and what proportion of the consideration money should be ordered to be refunded. These are all matters which, cannot be disposed of without remanding the case for a trial de novo to determine the right of the Plaintiffs to the relief u/s 65 and the amount to which they may be entitled if their right is upheld. This case, therefore, does not stand on the same footing as the case reported in L.R 70 IndApI. 12. the reason why the lower Courts have not granted a relief in this case is not that it was not open to them merely by reason of the absence of pleadings to grant the relief but because it was not possible for them, as the case then stood, to determine what was the amount due even if they were entitled to exercise their discretion in favor of the Plaintiffs. 13. An attempt was made in the Court of the learned District judge after arguments had been finished to amend the plaint by claiming an alternative relief. Allowing the amendment at that stage would have meant the remand of the case for trial of a new issue raised and it would really have been giving the Plaintiffs another opportunity of proving what they had failed to prove, namely the amount which was due to them, inspire of the existence of issue No. 1 (c). In these circumstances it cannot be said that the discretion which the trial Court and the lower appellate Court exercised in refusing to grant the relief u/s 65 of the Indian Contract Act in the case before them, was not properly exercised. It is open to the Appellants to proceed by way of a suit after paying full court-fee on the amount which they may be advised to claim. It is open to the Appellants to proceed by way of a suit after paying full court-fee on the amount which they may be advised to claim. One of the reasons why such matters are allowed to be disposed of in the case itself instead of the parties being referred to separate proceedings is to avoid multiplicity of proceedings. That object will not be gained by our allowing an amendment of the pleadings at this stage because, as has been pointed out, fresh proceedings will, in any case have to be taken, to determine the amount payable to the Appellants. 14. We do not think, therefore, that this case calls for any interference in second appeal and we dismiss this appeal. Since the appeal and the cross-objection both fail the parties should bear their own costs of this appeal and order of the lower appellate Court as to costs before that Court as well as before the trial Court is upheld.