Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri S.A. Shah, learned Counsel for the appellants.

2. An amendment application has been filed on behalf of the appellants raising five substantial questions of law. The amendment application is allowed. Substantial questions of law framed in the amendment application are part of memorandum of appeal.

3. This is plaintiffs second appeal arising out of the judgment and decree dated 23.10.1990 passed by the Civil Judge, Etah, in civil appeal No. 23 of 1983 confirming the judgment and decree dated 2.11.1982 of the trial Court passed in original suit No. 330 of 1974.

4. Learned Counsel for the appellants has filed additional substantial questions of law that he intends to argue while challenging the two judgments of the Courts below. The suit was instituted for permanent injunction against the defendant/respondent in respect of the plot No. 673-A/2-84 and 673-B/3-10 situated in Mauza Kalyanpur, Pargana Bilgram, District Etah, alleging that the defendant is trying to take possession of the plot in question, in which the plaintiffs are in occupation as owner.

5. The defendant filed written statement disputing the claim of the plaintiffs and so that they have no right over the disputed property. They are not in possession. The plaintiffs claimed that the plaintiff No. 1 is of unsound mind and he is not able to understand, therefore, the plaintiff No. 2, brother of the plaintiff No. 1 is representing him in the suit. The defendant claimed that they have been using the land in question.

6. A number of issues were framed. However, relevant issues are : “Issue No. 1, “whether the plaintiffs are the owner in possession? and Issue No. 6, “whether the plaintiff No. 1 Fateh Mohammad is of unsound mind.”

7. The evidence in support of the aforesaid issues to establish that Fateh Mohammad was of unsound mind and that he had not endorsed his thumb impression, the Court summoned him to obtain his thumb impression since the sale deed executed by him in favour of the defendant was required to be proved by an expert. The plaintiff No. 2 initially gave an application that Fateh Mohammad has gone out in connection with some work and subsequently changed his stand and stated that he had run away and his whereabouts was not known since last three years. P.W. 2 Kunwar Sen stated that he is not aware about the mental state of the plaintiff No. 1 Fateh Mohammad.

8. D.W. 1 and D.W. 2 have disputed the fact that Fateh Mohammad is of unsound mind and asserted that he plies rickshaw. The Courts below came to a conclusion that there is nothing in evidence to establish that Fateh Mohammad is of unsound mind and he executed the sale deed in favour of the defendant without understanding its consequences. The burden was that of the plaintiffs, which they failed to discharge. This finding on issue No. 6 by the trial Court is based on cogent and extensive reasoning and confirmed by the lower appellate Court. Similarly, issue No. 1 whether the plaintiffs are the owner in possession of the disputed plot, has also been accepted for want of sufficient proof. No attempt was made on the part of the plaintiffs to get survey commission issued and established the area and extent of their possession. Only evidence given was extract of Khasra whereas the sale deed in favour of the defendant was also not disputed. Oral evidence adduced by the plaintiffs was held to be contrary to the plaintiffs’ case and since both issues were decided against them, they were refused injunction. The sale deed executed and adduced in evidence as Exhibit A-2 is admitted and only assertion on behalf of the plaintiffs is that the disputed property is adjacent to his land. The witness of the sale deed, P.W. 2 has stated that the subject matter of the land in the sale deed is 3.75 Bighas. There is no relief claimed for cancellation of the sale deed or any declaration to that effect. Only relief is that of injunction. Issue No. 1 was also decided against the