Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the parties on the point of admission of second of appeal and perused the records.

2. Admitted case of the parties are that defendant No. 1 Moti had two sons, namely, Mohan Lal (plaintiff) and Sri Ram (father of defendant No. 2 (Algu). It is also admitted that one registered gift-deed was executed on behalf of defendant No. 1 Moti in favour of defendant No. 2 Algu on 11.5.1993 for the disputed agricultural land detailed at the foot of plaint. The plaintiff Moti had filed suit for cancellation of aforesaid registered gift-deed dated 11.5.1993.

3. In the original suit No. 1241/1994 the plaint averment was that parties belong to same family and disputed land was in joint ownership from the time of ancestors of parties. The plaintiff was born before coming into force of UPZA & LR Act, therefore being from joint family, he had 1/3rd share of disputed agricultural land since his birth. Therefore, his father Moti had no right to execute gift-deed of whole of the disputed agricultural property. The defendant No. 1 is a old person who cannot move or walk, cannot see properly and cannot hear, properly. Defendant No. 2 had taken benefit of these disabilities and got executed the disputed sale-deed from defendant No. 1 in his favour. When defendant No. 2 had objected the plaintiff from user of disputed agricultural land then plaintiff came to know about the registered gift-deed in question and filed suit for cancellation of whole gift-deed and for permanent injunction.

4. Defendant No. 1 Moti had filed written statement in original suit denying the pleadings of plaint and further pleaded that defendant No. 2 had been taking care and extending personal services to him; and on the other hand plaintiff had been maltreating him, therefore, he had executed the registered gift-deed of his disputed agricultural property in favour of his nephew defendant No. 2 out of love and affection. The plaintiff was born after coming into force of UPZA & LR Act. The plaintiff has no share in disputed property. Defendant No. 1 can walk, see and hear properly and himself performs his daily domestic work. The suit of plaintiff is based on incorrect facts and is liable to be dismissed.

5. In original suit, the defendant No. 2 Algu had also filed separate written-statement by which he denied the plaint case and pleaded that it is incorrect that plaintiff was born before coming into force of UPZA & LR Act or has one 1/3rd share in disputed property. Defendant No. 1 is owner of disputed property who had executed gift-deed in question of disputed land in favour of defendant No. 2 within knowledge of plaintiff. On the basis of gift-deed the name of defendant No. 2 has been mutated over disputed land. The consolidation proceedings had been initiated in the village relating to disputed land and are now coming to an end, as such, the suit is liable to be dismissed.

6. The trial Court had framed issues, accepted adduced evidences of the parties, and then Additional Civil Judge (J.D.), Court No. 1, Varanasi had passed the judgment dated 24.1.2014, by which original suit was dismissed. Aggrieved by the judgment of trial Court, Civil Appeal No. 22/2014 (Mohan Lal v. Sri Ram and another) was preferred by plaintiff of original suit. This appeal was heard and dismissed by the judgment of Additional District judge/Special Judge (P.C. Act) Court No. 1, Varanasi on 20.11.2015. In this judgment the first appellate Court had confirmed this finding of trial Court that defendants live together and defendant No. 1 was pleased from service extended by his grand-sons defendant No. 2 and therefore had executed gift-deed in question in his favour. Aggrieved by the judgment of trial Court, as well as the first appellate Court, present Second Appeal has been preferred by the plaintiff of original suit.

7. Learned counsel for the appellant contended that there were evidences that plaintiff was born before the coming into f