JAYANT BANERJI,J. - (1.) This second appeal has been filed by the defendant-appellants against the judgement and decree dated 11.7.2007 and 24.7.2007 respectively passed by the Additional District Judge, Court No. 2, Bijnor dismissing the Civil Appeal No. 96 of 2006 filed by the appellants whereby the judgement and decree dated 30.11.2006 passed by the Additional Civil Judge (Junior Division), Court No. 3, Bijnor in Original Suit No. 72 of 1995, was affirmed.
(2.) The following substantial question of law was framed by the Court on 11.10.2007: "(i) Whether the finding given in the Consolidation Suit regarding Balram Singh will operate as res judicata in the subsequent suit as the said finding is a nullity in view of the decision of this Court in Prabhat Sharma and another Vs. Hari Shankar Srivastava and others 1988 ALJ 436 which has relied upon the decision of the Supreme Court in Ram Chandra Arya Vs. Man Singh AIR 1968 SC 954?" Two other substantial questions of law were framed by the Court on 24.7.2019: "ii) Whether the courts below were justified in decreeing the suit without appointing the plaintiff-respondent no.2 as the guardian of the plaintiff-respondent no.1 in view of the provisions of Sections 4 and 6 of the Hindu Minority and Guardianship Act , 1956 and the provisions of Order 32 Rule 3 read with Rule 15 of the CPC? iii) Whether the failure of the trial court to conduct an enquiry as envisaged in Order 32 Rule 15 of the CPC in respect of the plaintiff-respondent no.1 had rendered the suit not maintainable on behalf of the plaintiff-respondent no.1?"
(3.) The suit was purportedly filed by the plaintiff-respondent No.1 through the plaintiff-respondent no.2, seeking relief of cancellation of a sale deed dated 23.9.1994 executed by the plaintiff no. 1, Balram Singh, in favour of the defendant-respondents in respect of a plot of land. Balram Singh, the plaintiff no. 1 was described in the plaint as of unsound mind. The plaintiff-respondent no. 2, Raghunath Singh, who verified and signed the plaint on behalf of the plaintiff-respondent no.1, stated in the plaint that the plaintiff no. 1 is of unsound mind (mad) since the beginning and he is totally unable to think for himself. It is stated that during consolidation proceedings under the U.P. Consolidation of Holdings Act, 19531, it was held by the Consolidation Officer that the plaintiff no. 1 was an idiot ('Jad Buddhi') and that his guardian was required to be appointed. The mother of the plaintiff no. 1 was appointed as his guardian, and the plaintiff-respondent no. 2 and late Ram Nath (father of the defendant-appellants) were parties and as such the order of the Consolidation Officer operates as res judicata. It is stated that after the death of the mother of the plaintiff no. 1, Ram Nath became the guardian of the plaintiff no. 1 and after his death, the plaintiff-respondent no. 2 came to be the guardian of the plaintiff no. 1. The defendants are brothers and they are the sons of late Ram Nath and had full knowledge of the unsound mind of the plaintiff no. 1, Balram Singh. The defendants illegally got executed an agreement to sell and got the plaintiff no. 1 to put his thumb impression on that document by exercising undue influence. Fraud was alleged. That document was registered and no money was paid to the plaintiff no. 1. Thereafter the defendants got executed a forged and fabricated sale deed dated 23.8.1994 and by exercising undue influence on the plaintiff no. 1 obtained his signature on that document. It is alleged that that forged and fabricated sale deed was a void document. No money was paid to the plaintiff no. 1, the sale deed was not executed by the plaintiff no. 1 in a fit state of mind and that no permission was taken from the District Judge, Bijnor for execution of the agreement to sell and the sale deed. That on coming to know of a rumour about the fabricated and forged sale deed, the plaintiff-respondent no. 2 obtained a copy of the same from the office of the Sub-Registrar, Bijnor and so in January 1995 for the first time he came to know of that sale deed. Since the plaintiff-respondent no. 2 is the real brother of the plaintiff-respondent no. 1, he is his guardian and therefore he has a right to file the suit on behalf of the plaintiff-respondent no. 1.;