Judgment ( 1. ) THIS appeal has been filed by plaintiff having lost from both the Courts below. ( 2. ) IN brief the suit of plaintiff is that the agricultural land in question was given to Chandhkhan, whose legal representatives are present appellants on the basis of sub- tenancy. The appellants initiated the proceedings before the Revenue Court for possession and for declaration of occupancy right and for mesne profit under Sections 91, 163, 188 of Rajasthan Tenancy Act. The case was decided in favour of Chandhkhan. Thereafter Motilal and Kasturibai, preferred an appeal before the Collector and Commissioner, but they were dismissed. However, the revision preferred by Motilal before the Board of Revenue, Gwalior was allowed and the case of Chandhkhan was dismissed. Before passing the order in revision by the Board of Revenue, Gwalior, the possession of land in question was given to Chandhukhan in compliance to the order of the Revenue Courts. After the decision from Board of Revenue in their favour, the respondents submitted an application under Sections 144 and 151, CPC for restoration of possession before Sub Divisional Officer, Sironj which was allowed on 31-3-1967 and it was ordered to deliver possession back to Motilal. This made a cause to the plaintiff to file the present suit. ( 3. ) THE present suit has been filed for declaration to Bhumiswami rights and injunction which was decreed by the Trial Court on 25-9-68. The appeal filed by Motilal and Kasturibai (present respondents), the same was dismissed on 9-5-72, against which Second Appeal No. 292/72 was filed in this Court and the same was allowed on 13-1-1983 and by setting aside the judgment passed by both the Courts below the case was remanded to the Trial Court. Thereafter, the parties amended their pleadings. ( 4. ) THE learned Trial Judge, after remand, dismissed the suit and the appeal which was preferred by the present appellants was also dismissed by the impugned judgment and decree. Hence, this second appeal. ( 5. ) THIS appeal was admitted on following substantial questions of law :-" (1) Whether findings of Revenue Court can operate as res judicata for the purpose of civil suit ?" " (2) Whether Gowardhan was not a disabled person and not entitled to lease out the agricultural holdings to the plaintiffs under Rajasthan Tenancy Act ?" ( 6. ( 5. ) THIS appeal was admitted on following substantial questions of law :-" (1) Whether findings of Revenue Court can operate as res judicata for the purpose of civil suit ?" " (2) Whether Gowardhan was not a disabled person and not entitled to lease out the agricultural holdings to the plaintiffs under Rajasthan Tenancy Act ?" ( 6. ) I have heard Shri R. A. Roman, Senior Counsel assisted by Shri C. R. Roman for appellants and Shri D. D. Bansal, Counsel for respondents. During the course of arguments, the learned Counsel for appellants did not press the first substantial question of law and, therefore, that point is not being decided. ( 7. ) ON the second substantial question of law, it has been contended by learned Senior Counsel Shri R. A. Roman that Gowardhan was not a disabled person and, therefore, since the plaintiff was a shikmi, he acquired Bhumiswami right on coming in to force of the M. P. Land Revenue Code, 1959. The learned Senior Counsel for appellant also putforth that defendants did not take this plea in their written statement and, therefore, the finding of learned Courts below holding that Gowardhan was a disabled person can not be sustained in the eyes of law, since there is no pleading to that effect. ( 8. ) REFUTING the aforesaid submissions of learned Senior Counsel for appellant, it has been contended by Shri D. D. Bansal, learned Counsel appearing for the respondents that in the written statement, there is a specific pleading of the defendants that Gowardhan was a disabled person. He was a patient of asthma and was also lame. The learned Counsel has also invited my attention to Para 7 (b) of the written statement that even if it is assumed that Gowardhan ever executed any patta in favour of Chandhukhan, it would not confer any right to the plaintiff, since it has been given by a disabled person and, therefore, plaintiff did not acquire any right and the suit has been rightly dismissed by the learned Courts below. ( 9. ) AFTER having heard the learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed. ( 10. ) THE contention of the learned Senior Counsel that there is no pleading regarding the disablement of Gowardhan sans substance. ( 9. ) AFTER having heard the learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed. ( 10. ) THE contention of the learned Senior Counsel that there is no pleading regarding the disablement of Gowardhan sans substance. On going through the Para 7 (a) and (b) of the written statement, it is gathered that not only there is specific pleadings that Gowardhan was a disabled person, but it has also been pleaded that even if it is assumed that Gowardhan executed the patta in favour of original plaintiff Chandhukhan, it would not create any right in him, since it was executed by a disabled person. ( 11. ) ON going through the pleadings and evidence, it is gathered that according to the plaintiff the patta was executed by Gowardhan in favour of Chandhukhan earlier to coming into the force of M. P. Land Revenue Code, 1959 and it was executed when Rajasthan Tenancy Act, 1955 (hereinafter referred to as act) was in force. Section 44 of the said Act says about right to let or sub-let which reads as under :- " 44. Right to let or sub-let-- A holder of khudkasht may let and a tenant may sublet the whole or any part of his holding subject to such restrictions as are imposed by this Act. " Section 46 of the said Act speak about letting or subletting in exceptional cases which read thus :- "46. Letting or subletting in exceptional cases.-- (1) The restrictions imposed by Section 45 on letting by a holder of Khudkasht and on subletting by a tenant shall not apply to- (a) a minor, or (b) a lunatic, or (c) an idiot, or (d) a woman who is unmarried or divorced or separated from her husband, or is a widow, or (e) a person in capable of cultivating his holding by reason of blindness or other physical disability or infirmity, or (f) a person who is a member of the armed forces of the Union, or (g) a person who is suffering detention or confinement in prison, or (h) a person not exceeding twenty-five years of age, who is a student prosecuting his studies in a recognized institution. " ( 12. " ( 12. ) IF the aforesaid provisions of the said Act is tested on the touch stone of the present factual scenario it would reveal that not only plaintiff Chandhukhan but his witness Kalu Khan (P. W. 3) admitted that Gowardhan was a disabled person. Since it has come in the evidence that Gowardhan was a disabled person and this evidence has been appreciated and considered by learned both the Courts below and had come to a definite finding that Gowardhan was a disabled person. Thus, according to me, whether Gowardhan was a disabled person or not is a pure finding of fact. Since learned both the Courts below after X-raying the evidence came to a categorical finding of fact that Gowardhan was a disabled person, this point can not be agitated in the second appeal. Indeed the plaintiffs witness Kalu (P. W. 3) and plaintiff himself admitted Gowardhan was a disabled person, and if this is the position, plaintiff would not become Bhumiswami on coming in to force of M. P. Land Revenue Code. According to me the view taken by learned Courts below is correct and the suit has been rightly dismissed. ( 13. ) THE substantial question of law No. 2 which has been framed is answered that Gowardhan was a disabled person and therefore no right has been vested in the Chandhukhan, who is the original plaintiff. ( 14. ) IN the result, the appeal is devoid of any substance and ground, the same is hereby dismissed with costs. Counsel fee Rs. 1000/- if precertified.