LALTA PRASAD (DECEASED) Vs. BHAGWAN DEEN

JUDGEMENT

(1.) This is the defendant's second appeal. Being aggrieved against the judgment passed by the Additional District Judge, Faizabad dated 16.11.2011, passed in Regular Civil Appeal No.78/2008 by which the first appellate court has set-aside the judgment and decree dated 09.4.2007 by which the regular suit no.200/89 of the plaintiff was dismissed by the trial court. The result is that the suit which was initially dismissed by the trial court was decreed by the first appellate court and it is for the said reason that the defendant has preferred the above second appeal which was admitted by this Court by means of order dated 21.7.2014 on the following substantial questions of law.

(2.) In order to answer the aforesaid substantial questions of law certain facts giving rise to the appeal are being noted first. That the plaintiff-respondents instituted a regular suit before the court of Civil Judge, Senior Division, Faizabad, which was registered as R.S. No. 200/1989. The plaintiffs had sought a relief of cancellation of a sale-deed dated 10.4.1989 executed in favour of the defendant appellants by one Dubar, who was the original plaintiff and he died during the pendency of the proceedings before the trial court. The specific pleadings of the plaintiff were that the plaintiff namely Dubar was of unsound right from his childhood and was illiterate and unmarried. The suit was filed by his brother namely Bhagwandeen and it was pleaded that it was Bhagwandeen who used to take care of Dubar including his well being as well as for his meals and residence. Bhagwandeen in the capacity of his elder brother and as care taker used to take care of the property of Dubar which also included the agricultural land which was inherited by both Dubar and Bhagwandeen from their father Vasudev. It was also pleaded that since the plaintiff Dubar was of extremely low intellect from his childhood he had no means of ascertaining what is good or bad for him and he used to loiter around.

(3.) The defendant no.1 to 3 contested the suit by filing its written statement. It specifically took the plea that Dubar was a person of normal intellect and was not a person of unsound mind. It also denied the fact that in the consolidation proceedings Dubar was declared as insane. In paragraph 27 it raised the question that since Dubar was a person of normal intellect, therefore, in the circumstances his brother Bhagwandeen was not entitled nor had the authority to file the suit as next friend. They primarily submitted that the plaintiff was the recorded tenure holder whose name was duly recorded in the revenue records and in none of the revenue records it was indicated that Dubar was of unsound mind and that he is represented by his next friend. Considering the aforesaid the sale-deed was executed after paying lawful consideration and as such the premise upon which the sale-deed is sought to be cancelled was denied. All the allegations regarding the abduction of Dubar etc were denied.