JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri R.K. Mishra, learned Counsel for the appellants and Sri V.K. Shukla, learned Counsel for the caveator/respondent. 2. This is a second appeal against the judgment and decree dated 17.3.2008/26.3.2008 passed by the Additional District Judge, Court No. 1, Azamgarh, in civil appeal No. 278 of 1997, Ram Lal v. Sabhajeet, confirming the judgment and decree dated 25.7.1997/2.8.1997 passed by the Additional Civil Judge (Junior Division), Court No. 12, Azamgarh in original suit No. 1023 of 1992. 3. The suit was instituted claiming relief for cancellation of the registered sale deed dated 1.7.1992 in favour of the defendant/respondent on the ground that it was got executed by the defendant/respondent by practicing fraud, mis-representation and misleading the appellant and without payment of any sale consideration. The plaintiff/appellant is owner in possession of the disputed plot. The plaintiff is aged about 75 years old and infirm. He is an uneducated person and that he had sufficient means to live and there was no necessity for him to sell the land in question. Copy of the plaint has been annexed as Annexure 2 to the affidavit filed in support of the stay application. On perusal of the plaint, it transpires that there was specific pleadings that he had executed a power of attorney in favour of his son Chhotey Lal for looking after his property. The relationship between the son and the plaintiff became our and uncordial, also certain conflict arose between the father and son, which led to the plaintiffs decision to cancel the aforesaid power of attorney. The plaintiff apprehended that his son will take away his property. 4. The defendant availed this opportunity and on the pretext of getting the power of attorney cancelled took him to the office of the Registrar. The plaintiff was ill and suffering from high fever, he did not understand and the defendant taking advantage of his vulnerable situation, fraudulently got his thumb impression on the sale deed in respect of the land. The plaintiff never intended to sell his property in dispute whatsoever. The defendant belongs to the same caste and village and always pretended that he wanted to help the plaintiff as he was ill and infirm person. The plaintiff never intended to sell his property in dispute whatsoever. The defendant belongs to the same caste and village and always pretended that he wanted to help the plaintiff as he was ill and infirm person. Later when the plaintiff came to know through certain acquaintances of the village that the defendant instead of getting the power of attorney cancelled, got the sale deed executed on which the plaintiff had endorsed his thumb impression believing it to be a deed of cancellation of power of attorney, he immediately instituted the suit. It was also pleaded that the plaintiff never handed over possession of the disputed plot to the defendant and possession is still continuing with the plaintiff/appellants. 5. Recital of the plaint has been placed before me by the Counsel for the appellants in support of his argument that the case set up before the trial Court was clear and specific that the sale deed was got executed by the defendant without any consideration and by practicing fraud while he was very ill in the month of June, 1992. The plaintiff was misled and he believed that the defendant is only trying to extend a helping hand by accompanying him to the Tehsil for getting the power of attorney in favour of plaintiffs son cancelled. 6. The trial Court framed only two issues. First one whether the sale deed is liable to be cancelled for the reasons detailed in the plaint? Second issue is in respect of entitlement of the relief claimed by the plaintiff/appellants. The trial Court dismissed the suit on the ground that there was no medical certificate in support of the contention of the plaintiff that he was ill at the relevant time and also that plaint allegation by the plaintiff is not worthy of reliance, since he admitted that the thumb impression on the disputed sale deed was that of the plaintiff himself. The plaintiff preferred a regular appeal before the District Judge, who confirmed findings of the trial Court. 7. Learned Counsel for the appellants has pressed following substantial questions of law, which are enumerated below : “(1) Whether the Courts below have committed illegality in recording finding without framing proper issues on the pleading of the parties and as such the findings of the Court below are illegal and without jurisdiction. 7. Learned Counsel for the appellants has pressed following substantial questions of law, which are enumerated below : “(1) Whether the Courts below have committed illegality in recording finding without framing proper issues on the pleading of the parties and as such the findings of the Court below are illegal and without jurisdiction. (2) Whether the Courts below have committed illegality in not recording the finding of delivery of possession as well as payment of consideration at the time of execution of alleged sale deed and alleged to have been executed in favour of the defendant, which is no sale deed under the law? (3) Whether in absence of recited in the sale deed with regard to transfer of possession by the vendor to the vendee and payment of sale consideration by the vendee to the vendor will amount to valid transfer under the law?” 8. Learned Counsel for the appellants submits that the specific case of the plaintiff set up before the trial Judge was that he being an old infirm ailing person, he did not realize that he is being duped by the defendant to endorse his thumb impression on the sale deed, which the plaintiff believed it to be a deed of cancellation of power of attorney in favour of his son. The plaintiff specifically pleaded that he had no need to sell his land and also that he was misled by the defendant while he was in a condition when he could not understand the fraud practiced by the defendant taking advantage of his ill health, lack of education and understanding. 9. Learned Counsel for the defendant/respondent has strenuously disputed arguments advanced on behalf of the appellants and has argued that findings of the fact arrived at concurrently by the two Courts cannot be interfered in exercise of jurisdiction under Section 100, C.P.C. 10. However, learned Counsels for the respective parties have agreed that the instant second appeal may be decided at this stage itself without summoning record of the lower Court. Accordingly, I proceed to decide this appeal on the three substantial questions of law enumerated hereinabove. 11. After going through the two judgments, the plaint and written statement, it is apparent that the Courts below have failed to frame proper issues such as specific pleadings in the plaint regarding infirmity of the plaintiff at the time of execution of the sale deed. 11. After going through the two judgments, the plaint and written statement, it is apparent that the Courts below have failed to frame proper issues such as specific pleadings in the plaint regarding infirmity of the plaintiff at the time of execution of the sale deed. Specific assertion in the pleading is that he was not able to understand the implication at the time when he was made to endorse his thumb impression on the sale deed by the defendant, he misrepresented it to be a deed of cancellation of power of attorney. It was incumbent on the Courts below to have framed specific issue regarding payment of consideration. The question that despite the sale deed being executed in the year 1992, the possession continues to be that of the plaintiff as well as whether the plaintiff/appellants were entitled to the benefit available to a Pardanasheen lady while deciding the suit on a clear pleading which would entitle him to all the benefits given to a Pardanasheen lady, thereby a heavy burden lay on shoulders of the defendant. 12. A bare perusal of the two judgments, it transpires that the Courts were in a hurry to dismiss the suit and appeal in a slip shod manner without framing proper issues. I refrain from giving any opinion on merits since the matter is remanded to the trial Court to decide the suit afresh after framing proper issues. In a suit for cancellation of the sale deed on the ground of non-payment of consideration and fraud, specific issues are liable to be framed regarding which I have already indicated in the foregoing part of my judgment. Also age, infirmity and other aspects are liable to be taken into consideration where there is an unambiguous pleading that he was tricked by the defendant in endorsing his thumb impression on the sale deed in question. 13. I direct that the trial Court shall permit the parties to lead evidence, and ensure that the suit is decided within a period of six months from the date a certified copy of this order is produced before him. The contesting parties shall co-operate with the trial Court without causing any delay as the matter is already pending since the year 1992. The contesting parties shall co-operate with the trial Court without causing any delay as the matter is already pending since the year 1992. I am of the considered view that the two judgments suffer from substantial error inasmuch as the Courts below failed to frame proper issues on the basis of pleadings of the parties and this resulted in miscarriage of justice. Three substantial questions of law raised by the Counsel for the appellants are obvious on the perusal of the two judgments. 14. The two judgments under challenge are hereby quashed. The second appeal is allowed. The matter is remanded to the trial Judge for deciding afresh. 15. Cost on parties. ————