JUDGMENT R. L. Khurana, J.—This is the plaintiffs regular first appeal against the judgment and decree dated 10-1-1992 of the learned Single Judge of this Court passed in Civil Suit No 63 of 1983 whereby the suit of the plaintiff for possession of the land measuring 12 bighas 10 biswas comprising of khata No. 732 and khasra No. 35/2, and land measuring 11 bighas 2 biswas comprising of khata No 739, khatoni No. 1564 and khasra No, 34 of Phati Nathan. Kothi Nagar, Tehsil and District Kullu specifically described in the plaint and jamabandi for the year 1970-71 and hereinafter referred to as the land in suit, was dismissed. 2. The suit out of which the Present appeal has arisen, was initially filed by Gehru, a deaf and dumb with low intelligence through Smt Devkoo his wife, as next friend, in forma pauperis The Sa5 Gehru deed during the pendency of the suit The appellant, before this Court Smt Kimtu is the daughter of the deceased who was brought on record as his legal representative and hereinafter is being referred to as the 3. Briefly stated the facts giving rise to the present case are these Gehru abovenamed deceased, was the owner- and in possession of the land in suit and some other lands in Phati Nathan, Kothi NagarTehsil and District Kullu His wife Smt Sobhi. acting as his general attorney on 4-10-1962 and 31-7-197. respectively vide two separate registered ealdeeds sold the land in suit in favour of one Shri Charan Dass Dogra, Advocate of Kullu, the predecessor-in interest of the defendants. 4. The said two alienations made by Smt. Sobhi were assailed an challenged by way of the civil suit on the ground that the said sales were without consideration and that the deceased Gehru. being under a legal disability, was not competent to enter into a legal contract, Smt. Sobhi was not legally authorised to sell the land in suit for and on behalf of the deceased Gehru It was further averred that the sale was a result of collusion between Smt Sobhi and the vendee Shri Charan Dass. The first sale dated 4-10-1962 in respect of 11 bighas 2 biswas off and S effected for an ostensible consideration of Rs. 6000 while the win sale made on 31-7-1971.which was in respect of 4 bighas to biswas was made for an ostensible consideration of Rs 20,000. The first sale dated 4-10-1962 in respect of 11 bighas 2 biswas off and S effected for an ostensible consideration of Rs. 6000 while the win sale made on 31-7-1971.which was in respect of 4 bighas to biswas was made for an ostensible consideration of Rs 20,000. Though vide second sale an area of bighas 10 biswas only was purported to have been conveyed the vendee, in collusion with Smt. Sobhi. got an area off bighas 10 biswas allotted in his favour during the partition proceeding. It was also averred that the vendee had the knowledge that the alleged general power of attorney in favour of Smt. Sobhi was null and void account of legal disability suffered by the deceased Gehru and also no permission of the Court for the alienation of the land in suit was obtained. The two sales were thus void ab-initio and therefore the plaintiff was entitled to possession of the land in suit. F UKID was 5. The defendants while resisting the suit raised preliminary objections as to locus-standi of Smt. Devkoo to act as next friend of r h valuation of suit, limitation, maintainability of the suit, estoppel and mis-joinder of causes of action. On merits, it was averred that Gehru did not suffer from any lagal disability. He was only deaf and dumb but capable of understanding his acts and interests He was legally competent into contracts The factum of Smt Devkoo being the wife of Gehru and her competency to act as his next friend was denied Smt Sobhi was the legally constituted attorney of Gehru and valid sales were made by her for consideration as such attorney. The land in suit at the material time was vacant and substantial improvements have been carried out there in the defendants since after the purchase by planting an orchard at large expenditure. Alternatively, it was pleaded that in case the two sales are held to be illegal null and void, the defendants have become the owners of the land in suit by way of their continuous adverse possession. 6, A number of issues were framed on 21-5-1985, 17-7-1984 and 28 8-1984 by the learned Single Judge on the basis of pleadings of the parties. 6, A number of issues were framed on 21-5-1985, 17-7-1984 and 28 8-1984 by the learned Single Judge on the basis of pleadings of the parties. 7 On the basis of the evidence led by the parties, the learned Single Judge held that though Gehru deceased was deaf and dumb, he was not under any legal disability. Therefore, the suit not having been filed by him personally was not a properly constituted suit Smt. Devkoo was found to be not the wife (widow) of the deceased Gehru and thus she was neither the legal representative of the said deceased nor competent to act as his next friend while filing the suit The plaintiff Smt Kimtu though was held to be the daughter of the deceased, it was held that no right to sue survived in her favour since the suit was never filed by Gehru himself and there being no legally constituted suit. The deceased Gehru was further held to be estopped by his acts and conduct in challenging the two sales effected by his legally constituted attorney. The suit was held to be barred by time. The two sales made respectively on ^-10-1962 and 31 7-197 were held to be valid, legal and binding The defendants were accordingly held to be the owners and in possession of the land in suit. Consequently, the suit was dismissed vide the impugned judgment and decree dated 10-1-1992. 8. It will not be out of place to mention here that prior to the present case, a suit being Civil Suit No 31 of 1981 was also filed by Gehru deceased through Smt Devkoo acting as next friend, assailing the alienation of land made by his daughter Smt Kimtu acting as his guardian and for possession of the land so alienated. This alienation was also made in favour of Shri Charan Dass Dogra, the predecessor-in-interest of the present defendants. The said suit was decreed in favour of the plaintiff by a learned Single Judge of this Court on 18-10-1985 reported as ILR (1985) HP 896. In the said suit no objection was raised by the defendants as to the legal disability of the deceased Gehru Nor any objection was raised as to the competency of Smt Devkoo to act as next friend of the deceased Gehru and the filing of the suit by her as such next friend. In the said suit no objection was raised by the defendants as to the legal disability of the deceased Gehru Nor any objection was raised as to the competency of Smt Devkoo to act as next friend of the deceased Gehru and the filing of the suit by her as such next friend. The only question raised therein, was that Smt Devkoo was not the legally wedded wife of the deceased Gehru and as such, was not his legal representative. Though in the said case, Smt. Devkoo was held to be not the wife (widow) of the deceased Gehru, the suit brought by her as his next friend was found to have been legally and validly filed and accordingly a decree for possession of the land involved therein was passed by holding the alienation made by Smt. Kimtu daughter of the deceased Gehru in her capacity as guardian to be null and void ab-initio 9. The judgment and decree dated 18-10-1983 in the said Civil Suit No. 31 of 1981 has since been affirmed by us vide a separate detailed judgment and decree of even date passed in Regular First Appeal No. J08 of 1986 and other connected appeals. The question which thus arises for consideration is—whether the defendants having failed to raise the question of legal disability of the deceased Gehru and the competency of the suit filed by Smt. Devkoo as his next friend in an earlier suit, can be permitted to raise such a question in the present case ? 10. Section 11, Code of Civil Procedure, which deals with the principle of res-judicata, lays down ;— “11. Res-judicata.—Na Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit of the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court Explanation I —The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II. Explanation II. -For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III —The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly. by the other. Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation K—Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI -Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII.—The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue of former suit, shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII —An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised ." 41 Explanation III and IV to section 11, quoted above, are material for the purpose of the present case. The plaintiff had specifically averred in the earlier suit being Civil Suit No. 31 of 1981 that the deceased Gehru was deaf and dumb person with low intelligence. The only dispute was that Smt. Dcvkoo was not his wife and as such not entitled to act as the next frient. Thus there was an implied admission on the part of the defendants that the deceased Gshru was under a legal disability and not capable of suing in his own name. The only dispute was that Smt. Dcvkoo was not his wife and as such not entitled to act as the next frient. Thus there was an implied admission on the part of the defendants that the deceased Gshru was under a legal disability and not capable of suing in his own name. The matter with regard to legal disability of Gehru was involved in the earlier suit which stood impliedly admitted by the defendants. Therefore, by operation of principle of res-judicata, the defendants cannot re-agitate the said issue again in this case. 12. The apex Court in State of Uttar Pradesh v. Nawab Hussain, AIR 1977 SC lo8O, while dealing with the principle underlying Explanation IV to section ll Code of Civil Procedure, has held that where the parties have had an opportunity of converting a matter that should be taken to be the same thing as if the matter had actually been controverted and decided. In the case before the Apex Court, the petitioner therein was dismissed from service. He filed a writ petition for quashing the disciplinary proceedings on the ground that he was not afforded a reasonable opportunity to meet the allegations against him and that the action taken against him was mala fide. The writ petition was dismissed. He, thereafter, filed a suit challenging the order of dismissal on the ground, inter alia, that he was appointed by Inspector General of Police and that the Deputy Inspector General of Police was not competent to dismiss him by virtue of Article 311(1) of the Constitution. The writ petition was dismissed. He, thereafter, filed a suit challenging the order of dismissal on the ground, inter alia, that he was appointed by Inspector General of Police and that the Deputy Inspector General of Police was not competent to dismiss him by virtue of Article 311(1) of the Constitution. It was held :— “It is not in controversy before us that the respondent did not raise the plea, in the writ petition which had been filed in the High Court, that by virtue of Clause (1) of Article 311 of the Constitution he could not be dismissed by the Deputy Inspector General of Police as he had been appointed by the Inspector General of Police It is also not in controversy that that was an important plea which was within the knowledge of the respondent and could well have been taken in the writ petition, but he contented himself by raising the other pleas that he was not afforded a reasonable opportunity to meet the case against him in the departmental inquire and that the action taken against him was mala fide It was therefore not permissible for him to challenge his dismissal in the subsequent suit, on the other ground that he had been dismissed by an authority subordinate to that by which he was appointed That was clearly barred by the principle of constructive resjudicata ” 13 As stated above, the defendants in the earlier suit never raised the plea that the deceased was not suffering from any legal disability and therefore was competent to bring a suit in his own name and that there was no need to act through a next friend It is not that the issue having been raised in the earlier suit was kept open for re-agitation. It definitely ruled out the plea because it was neither raised nor canvassed nor argued in the earlier suit In these circumstances it is not open to the defendants to re-agitate the issue in the present case. 14. In Sodaman and others v. Jharu and others, AIR 1957 Punj 19, certain proprietors of a village obtained a decree for declaration that they were entitled to graze their cattle in the entire shamlat land of the village. This decision was upheld by the High Court. 14. In Sodaman and others v. Jharu and others, AIR 1957 Punj 19, certain proprietors of a village obtained a decree for declaration that they were entitled to graze their cattle in the entire shamlat land of the village. This decision was upheld by the High Court. Subsequently, certain other proprietors of the village (who were defendants in the earlier case) filed a suit for recovery of damages alleged to have been sustained by them on the ground that the defendants (plaintiffs in the earlier suit) had allowed their cattle to graze in certain areas of shamlat land surrounding their huts which were reserved exclusively for their use in terms of the custom of the village. It was held that the plaintiffs in the subsequent suit and who were the defendants in the former suit could have raised the plea taken by them in the subsequent suit as a defence in the earlier suit and the same could have been considered and determined in the said earlier suit. Since the failed to set up this defence, they were precluded from raising the said plea in the subsequent suit. 15. Assuming that the defendants can raise such a plea in this case, the question that arises is whether the deceased Gehru being a deaf and dumb was under a legal disability and the suit filed on his behalf by a next friend is valid ? Rule 15 of Order 32, Code of Civil Procedure, provides :— "15. Rules 1 to 14 (except Rule 2-A) to apply to persons of unsound mind—-Rules I to 14 (except Rule 2 A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being surd ” There is no denying that the deceased Gehru was deaf and dumb and it was only be means of signs that one could communicate with him. 16. The Lahore High Court in Tirath Ram v Emperor, AIR 1930 Lahore 424 had the occasion to deal with the applicability of the provisions of Order 32 Rule 15, Code of Civil Procedure, visa-vis a deaf and dumb person. 16. The Lahore High Court in Tirath Ram v Emperor, AIR 1930 Lahore 424 had the occasion to deal with the applicability of the provisions of Order 32 Rule 15, Code of Civil Procedure, visa-vis a deaf and dumb person. It was held that Order 32, Rule 15 is intended to cover the case of persons who are absolutely deaf and dumb and on that account are incapable of receiving any communications or of communicating their wish or thoughts to others. Be it stated that in the case before the Lahore High Court the concerned person was deaf and dumb It was only by means of signs that one could communicate with him and his replies also could be given by means of signs. 17. Following the ratio laid down by the Lahore High Court, the Madras High Court upheld the appointment of a guardian ad -litem for a deaf and mute defendant who has been leading a family life and eking his livelihood by grazing cattle. See: In re Periaswami Goundan, AIR 1954 Madras 810, In Ranbir and others v. Tulsi and another, 1983 PLR 69, while dealing with the case of a deaf and dumb plaintiff, it has been held by the High Court of Punjab and Haryana that even though the case of such a plaintiff may not be covered by the provisions contained in Order 32 Rule i5t Code of Civil Procedure, a next friend could be appointed by the Court for such a deaf and dumb plaintiff in exercise of its inherent powers under section 151, Code of Civil Procedure in the interest of justice since the plaintiff was physically incapacitated due to defect in speech and understanding the whole matter properly. 18. It is contended on behalf of the defendants that Smt Devkoo, who been found to lie not the wife of deceased Gehru, was not competent to act as his next fried. There is no merit in such contention. 18. It is contended on behalf of the defendants that Smt Devkoo, who been found to lie not the wife of deceased Gehru, was not competent to act as his next fried. There is no merit in such contention. Even though Smt Devkoo has been found to be not the wife of deceased Gehru, under the law there is no impediment for her being his next friend for the purpose of suit Under Rule 4 of Order 32, Code of Civil Procedure any person can be the next friend provided :— (a) he/she is not of unsound miad ; (b) he/she is himself/herself not a minor ; and (c) his/her interest is not adverse to that of the person for whom he/she is acting as next friend. There is no requirement under the law that a person must be related to the person for whom he/she is appointed as next friend. Admittedly, Smt Devkoo, at the relevant time, was a major. She possessed a sound disposing mind. There is nothing on record to show that her interests were in any way adverse to that of the deceased Gehru, We, therefore, have no hesitation in holding that Smt Devkoo was competent to act as next friend for the deceased Gehru and as such the suit filed by her in her capacity as next friend for and on behalf of Gehru was competent and legally constituted. Since the suit filed through next friend has been held to be legally constituted and competent, consequent upon the death of Gehru, the right to sue survived to his daughter Smt Kimtu, who has been validly substituted as plaintiff in place of the original deceased plaintiff Gehru, being the sole legal representative The findings of the learned Single Judge on the points, which are to the contrary, are bad and liable to be set-aside, 19, Insofar as the findings on the point whether Smt Devku is the wife of the deceased Gehru are concerned, we are in full agreement with the learned Single Judge that Smt. Devkoo is not the wife of the deceased Gehru and as such, not his legal heir and representative We have held to the same effect in Regular First Appeal No. 1089 of 1986 and other connected appeals 20 Admittedly, the land in suit came to be alienated in favour of the predecessor-in-interest of the defendants vide sale deeds Ex. D I and D-2 respectively on 31-7-1971 and 4-10-1962. Both these sale deeds were executed by Smt Sobhi acting as general attorney for the deceased Gehru. The validity of these two sales would thus depend on the question if Smt. Sodhi was a validly and legally constituted attorney of the deceased Gehru at the relevant time. 21 Ex. D-6 is the photocopy while Ex D-8 is the original registered power of attorney dated 8 8-1962 purported to have been executed by the deceased Gehru in favour of his wife Smt Sodhi In order to prove the execution thereof, the defendants have examined the two attesting witnesses thereof, namely, DW-6 Pritam and DW-7 Saranpat. Besides the sub Registrar before whom the power of attorney Ex. D 8 was presented at the time of registration, has been examined as DW-11 22. There is no denying that the deceased Gehru was deaf and dumb and could communicate only by means of signs The plaintiff Smt Kimtu daughter of the deceased Gehru, while appearing as PW-2 has in unique vocal terms stated that Gehru was absolutely deaf and dumb from the very beginning In other words, he was deaf and dumb since birth. PW-2 has not been cross examined by the defendants on this aspect of the matter, nor any suggestion was made either that Gehru became deaf and dumb at a later stage or that he could hear is spoken loudly, On the failure of the defendants to cross-examine PW-2 on the question that Gehru was absolutely deaf and dumb from the very beginning, this aspect of the matter will be deemed to have been admitted by the defendants. Therefore, the evidence led by the defendants that the deceased could hear if spoken loudly cannot be accepted and relied upon, 23. The evidence as to the valid execution of the power of attorney, thus, has to be scrutinised and examined in the light of the above fact. At the very out-set it may be observed that none of the two attesting witnesses are either related to the deceased Gehru or from his village. Both are from different villages. At the relevant time DW-6 Pritam was not even the Lambardar of the village of the deceased Gehru. 24- DW-6 Pritam in his examination-in-chief has stated in the following terms with regard to the execution of the power of attorney Ex. Both are from different villages. At the relevant time DW-6 Pritam was not even the Lambardar of the village of the deceased Gehru. 24- DW-6 Pritam in his examination-in-chief has stated in the following terms with regard to the execution of the power of attorney Ex. D-8, copy of which is Ex. D-6 :— "Gehru executed a power of attorney in favour of is wife Sobhi. It was scribed by Hira Lal, petition writer. I identify my signatures on the duplicate copy of the power of attorney on Bahi No. 4 Its true photo-stat copy is Ex. D 6 and Ex D-6/A, The power of attorney was thereafter presented before the Tehsildar, Kullu. Tehsildar read over the power of attorney in the presence of all of us and inquired from Gehru about his consent, Gehru indicated it by signs that he had consented. I signed the document once again before the Tehsildar and Gehru thumb marked it The document pertained to appointment of Sobhi as Mukbtiar to do every thing regarding the dispute of land etc. I am illiterate. I do not know anything else.” (Emphasis supplied) During the course of cross-examination, DW-6 has stated to the following facts :-~ (i) He never had any occasion to communicate with either Gehru or Sobhi prior to the date of execution of the power of attorney, (ii) He was not the Lambardar of the village of deceased Gehru at that time, (iii) He has never visited the house of Gehru, (iv) He had attested the power of attorney as a witness at the instance of SmL Sobhi, (v) When he reached, the power of attorney had already been written by the scribe. (vi) The Tehsildar asked Gehru as to who was Sobhi to which Gehru replied that she was his "Laree" (wife), (vii) The Tehsildar also asked Gehru as to what he had written in the document and Gehru indicated by signs that he had executed the document in favour of his wife, (viii) Gehru did not speak any other word from his mouth except the word "Laaree ” 25. The second attesting witness of Ex D-8, namely DW-7 Saranpat dumb. He has further stated to the following facts :— (a) The petition writer had read over the contents of the power of attorney to Gehru who thereafter had affixed his thumb impression. The second attesting witness of Ex D-8, namely DW-7 Saranpat dumb. He has further stated to the following facts :— (a) The petition writer had read over the contents of the power of attorney to Gehru who thereafter had affixed his thumb impression. (b) The power of attorney was then presented for registration before the Tehsildar by Smt. Sobhi in the presence of the two attesting witness and Gehru. (c) The Tehsildar perused it and read over contents thereof and enquired from Gehru as to in whose favour he had executed the same. (d) Gehru pointed out towards his nose and spoke "Laaree". (e) The contents of the power of attorney were written by the petition writer as given out to him by Smt. Sobhi and Gehru at that time was nodding his head saying "Aan-Aan-Aan” (f) Gehru was deaf and dumb to the extent he was in 1962 from the time he met him first, that is, at the age of 10-12 years. (g) The entire work pertaining to writing of the power of attorney and its registration was got done by Sobhi and no part was played by Gehru since he was deaf and dumb. 26 What is brought out in the evidence of the two attesting witnesses is that the power of attorney was read over an explained to Gehru both by the scribe and the Sub-Registrar. This part of the evidence has to be rejected straightaway in view of the fact that Gehru was absolutely deaf and dumb Evidence is lacking to show that the deceased GehruS made to understand by signs about the contents of Ex, D-8. DW-11 Hardip Singh, who at the relevant time was th» Naib Tehcii darcum-Sub-Registrar, Kuliu, has categorically stated in his” examination in-chief that the document Ex. D-8 was read over and its contents Were explained to Gehru, who was partially deaf and dumb and could hear if spoken to loudly. The power of attorney Ex. D-8 contains three endorsements under the signatures of the Sub-Registrar. Out of these, the first two endorsements are material. D-8 was read over and its contents Were explained to Gehru, who was partially deaf and dumb and could hear if spoken to loudly. The power of attorney Ex. D-8 contains three endorsements under the signatures of the Sub-Registrar. Out of these, the first two endorsements are material. These endorsements, when translated into English read ;— "The aforesaid general power of attorney has been presented by Shri Gehru Ram, aged 52 years, slightly deaf and dumb yet intelligent, son of Benu son of Lehnu, caste Bairagi, resident of Ghurdor, Phati Nathaa, Kothi Nagar, before me in my office, i.e., the office of the Sub-Registrar, Kullu, for the purpose of registration of the same, this 28th day of August, 1962, corresponding to 6 Bhado, 1884 Saka, viz., Monday between 12 and 1 p.m. Sd./- Sub-Registrar" "Shri Gehru Ram executants of the general power of attorney has admitted the correctness of the contents of this document after understanding the same through signs/gastures. Smt. Sobhi, the general attorney and wife of the executants of the general power of attorney (Shri Gehru) is also present. The parties have been identified by the marginal witnesses S/Shri Pritam Lambardar and Saranpat. The first witness is personally known to me and he has identified the second witness. Sd./- Sub-Registrar 28-8-1962." DW-11 has admitted that the endorsements are in the hand of the registration clerk and that he had merely signed the same. The witness has not stated that the endorsement were recorded by the registration clerk in his presence and under his dictation. He even could not tell as to who was the concerned registration clerk. 27 It is well established rule of law that in the case of a person who is illiterate or who is not in a position to read the contents of a document, the contract cannot be imposed upon him simply because he has endorsed his signatures thereon unless further it is proved that he did that after understanding the contents of the same. In other words, the rule of law is that the pen must go with the mind and unless both the elements are present it cannot be said that the document is his. (See : Smt. Benarasi Debt v. New India Assurance Co. Ltd, AIR 1959 Pat 540) 28. In other words, the rule of law is that the pen must go with the mind and unless both the elements are present it cannot be said that the document is his. (See : Smt. Benarasi Debt v. New India Assurance Co. Ltd, AIR 1959 Pat 540) 28. Nothing has come in the evidence of DW-11 as to what steps were taken by him to make the deceased Gehru understand the contents of the document Ex. D-8. He has stated that he did not remember about the things that happened during the registration of the document except what was indicated by the contents of the document themselves. 29 As stated above, the above referred to endorsements on Ex D-8 were neither recorded in the presence of nor under the dictation of DW-1 1, therefore, even though such endorsements are per se admissible in evidence under section 35 of the Registration Act, on the failure of the defendants to examine the author thereof, the same cannot be relied upon for the purpose of arriving at the conclusion that the contents of the document Ex, D-8 were properly explained to the deceased Gehru and that he understood the same. 30. There is yet another suspicious circumstance of the case. The original power of attorney Ex. D-