Hon’ble Harsh Kumar, J.—The present second appeal has been filed by defendant Nos. 1 and 2 against the judgment and decree dated 16.2.1998 passed by Additional District Judge/Special Judge Moradabad in Civil Appeal No. 98of 1991 seeking the relief of setting aside the impugned judgment and decree passed by the first appellate Court and upholding the judgment and decree dated 4.2.1991 passed by the Trial Court in Civil Suit No. 236 of 1985 by which the plaintiff’s suit for cancellation of sale-deed was dismissed with costs.

2. The brief facts relating to the case are that Sri Dharam Veer Singh filed Civil Suit No. 236 of 1985 in the Court of Civil Judge Moradabad on 12.4.1985 for obtaining a decree for cancellation of sale-deed dated 17.9.1984 which is alleged to have been presented for registration in the office of Sub-Registrar on 19.10.1984 and was registered on 21.12.1984.

3. In the suit was filed by Sri Dharm Veer Singh, through his next friend Lakhpat Singh, claiming himself (Dharam Veer Singh) to be a person of unsound mind, the allegations of plaint in brief are that, the plaintiff has 1/3rd share in the property plot Khasra Nos. 403, 422, 423 and 444 detailed at the foot of the plaint; that at the time of execution of impugned sale-deed, the plaintiff was not a person of sound mind, was not capable of understanding the contents of sale-deed and was not even able to understand as to why and on which papers he is putting his thumb impressions; that the impugned sale-deed was obtained in hurried and unnatural manner and was not read over or explained to the plaintiff; that the plaintiff did not receive any sale consideration and execution of sale-deed for a sum of Rs. 50,000/- is without consideration; that the land in question was worth Rs. 1,50,000/- at the time of execution of alleged sale-deed; that no permission to sell was obtained from the District Judge; that the plaintiff had no need to sell the property, over which the plaintiff and his family was totally dependent; that the impugned sale-deed has been obtained by playing fraud on the plaintiff without obtaining the consent of his wife and relatives.

4. The defendants contested the suit denying the allegations made in the plaint. The defendant No. 3 Gajendra Singh who is neither vender, nor vendee nor marginal witness to the sale-deed in dispute and neither he has any concern nor any relief has been prayed against him and has been unnecessary impleaded by plaintiff, being son-in-law of his brother, and so has been arrayed as defendant-respondent No. 5 in the present second appeal.

5. On parties pleadings the trial Court framed as many as eight issues, out of which issue Nos. 1, 2, 3, 6 and 7 have been framed on legal pleas taken in written statement issue Nos. 4 and 5 are issues of facts, while issue No. 8 relates to the relief if any to which plaintiff is entitled. Issue No. 4 is, “whether the plaintiff is a person of unsound mind and has a right to file suit through next friend” and issue No. 5 is “whether the sale-deed dated 17.9.1984 is illegal for the reasons mentioned in Para 6 of the plaint”. The Trial Court after analysis of evidence on record, held that the plaintiff has failed to prove that he is a person of unsound mind and so Lakhpat Singh has no right to file suit on his behalf as his next friend, and on issue No. 5, it came to the conclusion that the plaintiff has not been and is not a person of unsound mind and the sale-deed has been executed by him after understanding the affairs and so the impugned sale-deed is not liable to be cancelled.

6. In view of the findings on issue No. 4 and 5 against the plaintiff and in favour of the defendants, the Trial Court dismissed the suit of plaintiff with costs.

7. Feeling aggrieved with the dismissal of the suit, the plaintiff filed Civil Appeal No. 98 of 1991 in the Court of District Judge, Moradabad which was decided by impugned judgment and decree passed by the Additional District Judge/special Ju