Point of Law : Once the first appellate court has undertaken the exercise of scrutinizing the evidence and it has given its reason to reverse the findings of the trial court and gave its own finding holding that Dubar was a person of weak intellect, this being essentially a finding of fact cannot be interfered with in exercise of powers under section 100, CPC

JUDGMENT :

Jaspreet Singh, J.

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.

"i) Whether the learned lower appellate court having formulated only one point on the question of validity of sale-deed as to whether the executant of the sale deed, Dubar was ^^v/kZ ikxy** vkSj ^^ew<** and having recorded a finding in para 41 that Dubar is not found in any manner to be a man of ^^fod`r fpRr** could decree the suit for cancellation of the alleged sale deed going beyond the same on any other point, and the judgment rendered by the appellate court as such is sustainable in the eyes of law?

(ii) Whether majority of a man or woman has to be determined on the basis of his age counted from his or her date of birth or it is to be determined on the basis of the mental capacity of a man and the decree as such passed by the learned appellate court treating a man of 50 years to be minor is sustainable in the eyes of law?

(iii) Whether Dubar being alleged to be insane from his birth and as per respondent himself being capable to give permission to raise construction over his land to Bhagwan Deen as owner of the same and he could be said to be incapable for executing the sale deed duly executed by him presented before Sub-Registrar after due scrutiny and satisfaction endorsing the certificate to that effect?"

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.

3. 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.

4. In paragraph 4 of the plaint it was specifically pleaded that when the consolidation operations commenced in the village and as the plaintiff was of a weak intellect, consequently, the brother of the plaintiff represented Dubar in the consolidation proceedings before the Consolidation officer where Dubar was declared as a person of unsound mind and Bhagwandeen was appointed as his next friend/guardian.

5. It was further pleaded that the property in question is situate on the main road and since it had the house belonging to the plaintiff and Bhagwandeen where both the brothers were residing, however, the defendant No. 2 who belongs to different caste and being a clever person had attempted to grab the said property and with the aforesaid in m