[Rakesh Kainthla, Judge

The present appeal is directed against the judgment and decree dated 31.12.2004, passed by the learned Additional District Judge, Ghumarwin, H.P. (learned Appellate Court), vide which the judgment and decree dated 26.8.1997, passed by the learned Sub Judge, First Class, Ghumarwin, District Bilaspur, H.P. (learned Trial Court), were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a declaration that the suit land described in para. 1 of the plaint is owned and possessed by her. The plaintiff has a hearing and speech disability. She is not in a position to understand her good and bad and is incompetent to execute any gift or any document. She had not executed the Gift Deed dated 28.11.1989. A consequential relief of permanent prohibitory injunction restraining the defendants from interfering with the suit land and an alternative relief of possession by demolition of the structure, if any, constructed during the pendency of the suit were also sought. It was asserted that the plaintiff is 80 years old and an infirm person who has a hearing, speech and cognitive disability since her birth. She does not understand her good or bad. Fateh Chand Guleria is taking care of her. Defendants Nos. 1 and 2 claimed that the plaintiff had executed a gift deed in their favour on 3.12.1989. They asked the plaintiff to vacate the suit land. The plaintiff is unable to execute any gift deed or any other document. She is the owner in possession of the suit land, and the gift deed set up by the defendants is null and void, which does not affect her rights. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by the defendants by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi, jurisdiction and cause of action, the suit being bad for non-joinder and mis-joinder of parties, and the suit having not been properly valued for the purpose of Court fees and jurisdiction. The contents of the plaint were denied on the merits. It was asserted that the plaintiff had executed a gift deed in the defendants’ favour voluntarily. A false suit was filed by the plaintiff’s next friend. Therefore, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

Learned Trial Court framed the following issues on 21.10.1991: -

1. Whether the plaintiff is the owner in possession of the suit land as alleged? OPP.

2. Whether the plaintiff is entitled for the declaration that the gift deed executed in favour of the defendants by the plaintiff dated 28.11.1989 is false, forged, illegal and void as alleged? OPP.

3. Whether the plaintiff is entitled to the relief of a permanent prohibitory injunction as alleged? OPP.

4. Whether the plaintiff is entitled for possession of the suit land by demolishing the structure if constructed during the pendency of the suit as alleged? OPP.

5. Whether the plaintiff is deaf and dumb and of unsound mind by birth, if so its effect? OPD.

6. Whether the suit is not maintainable in the present form? OPD.

7. Whether the plaintiff has no locus standi to file the present suit? OPD.

8. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD.

9. Whether the suit has not been properly valued for the purpose of the court fee and jurisdiction? OPD.

g10. Whether this Court has no jurisdiction to hear and decide the suit? OPD.

11. Whether the plaintiff has no cause of action? OPD.

12. Whether the defendants are in possession of the suit land by virtue of a gift deed dated 28.11.1989, if so its effect? OPD.

13. Relief.

The parties were called upon to produce evidence, and the plaintiff examined Fateh Chand (PW1), Bansi L