The court has the discretion to determine the competency of a party who is deaf and dumb, and has the paternal power to safeguard the party's interest.

V.K. Ahuja, J.:

This Regular Second Appeal under Section 100 C.P.C. has been filed by the appellant/plaintiff against the judgment and decree of the Court of learned District Judge, Chamba, dated 15.9.2000, vide which he accepted the appeal filed by the respondent and set aside the findings of learned Senior Sub Judge, Chamba, dated 14.1.2000, decreeing the suit for declaration and consequently, dismissed the suit of the plaintiff.

2. Briefly stated, the facts of the case are that the appellant hereinafter also referred to as the plaintiff filed a suit for possession by way of partition as against the original respondent Smt. Suto, now represented by her L.R., hereinafter referred to as the defendant. It was alleged by the plaintiff that she has filed the suit through her sister Smt. Brahmi for separate possession of her half share by way of partition of land comprised in Khasra Numbers as detailed in the plaint measuring 382-5 Square yards, situated in Chamba Town-I. It was alleged by the plaintiff that she and defendant are joint owners in possession of the suit property. The defendant is step daughter of the plaintiff. The plaintiff is deaf and dumb. The defendant being step daughter has been harassing the plaintiff. Since plaintiff is deaf and dumb and is incapable to protect her interest and as such, the suit has been instituted by her through her sister Smt. Brahmi. It was alleged that the plaintiff is in possession of less area than her share in the suit property and she wants to separate her share by way of partition. It was alleged that the other land of the parties was acquired by the Chamera Project Second Stage and the defendant had received entire compensation thereof and did not pay even a single penny to the plaintiff. The plaintiff had requested the defendant to effect partition of the suit property but she declined, hence, the suit filed by the plaintiff.

3. The defendant took up number of preliminary objections. On merits, she pleaded that the plaintiff is not joint owner of the suit property and the entries showing the plaintiff to be joint owner are wrong. It was pleaded that originally the suit property belonged to Birbal, father of defendant, who bequeathed his entire property in favour of the defendant vide Will dated 20.1.1962 and thus, the defendant became exclusive owner of the suit property. It was also pleaded that though the plaintiff is deaf and dumb, but she is capable of protect her interest as she is able to communicate with others. It was alleged that the plaintiff received the compensation from Chamera Project authorities and she is not entitled to get the suit property partitioned

4. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether the plaintiff has ½ share in the suit property as alleged? OPP 2. Whether Shri Birbal has executed a valid will dated 20.1.1962 in favour of the defendant, as alleged? OPD 3. Whether this court has no pecuniary jurisdiction as alleged? OPD 4. Whether the suit is bad for non joinder of necessary parties as alleged? OPD 5. Whether the suit is barred by limitation? OPD 6. Whether the entries in the revenue record showing the plaintiff to be owner of the half share in the suit property are wrong and incorrect as alleged? OPD 6-A Whether the plaintiff Smt. Koshalya Devi is unable to protect her interest? OPP 7. Relief.

5. Parties led their evidence and the learned trial Court vide its impugned judgment decided all the issues in favour of the plaintiff and as against the defendant and consequently decreed the suit of the plaintiff for possession by way of partition and a preliminary decree was passed accordingly in favour of the plaintiff and as against the defendant.

6. On appeal, the learned District Judge vide his impugned judgment allowed the appeal on the grounds that Smt. Brahmi was not competent to maintain the suit on behalf of the plaintiff Koshalya Devi. On this finding only, the appeal was all