RANJIT SINGH, J. - (1.) APPELLANT , a simpleton, has been taken for fraudulent rides by his own people, his relatives, which include his wife. What would have been his fate, if he had not been having 10 acres of land on his name ? None seems to be interested in this simpleton, but all have made real efforts at his land. Unmindful of his condition, statedly a 'bholabhala', in layman language, the Courts have also not been kind to him and have failed to check and correct the fraud being played with him. As a result, he is before this Court in aforesaid Regular Second Appeals and is fighting to save his land. Perhaps upon this would depend his survival. His appeals, filed before this Court, are pending since 1984 and perhaps may have remained confined as one of the pending cases and so too the fate of this simpleton but for a chance impatience shown by the respondents and real vigilance by learned counsel for the appellant, Sh. R.K. Battas. An innocuous approach to file an application saying that the parties have reached compromise for giving some part of the land back to Biru out of the decretal property, has revealed the real plans behind the move to deprive appellant, Biru, of his property. While drafting the compromise deed, Biru was brought to the learned counsel, who could notice that Biru had absolutely no capacity to understand his interest and good or bad for him. The counsel also noticed that the health of Biru had further deteriorated during last two decades of pendency of these appeals. He otherwise was noticed as simpleton in the record of the case and had earlier been defrauded by his wife. This man was made to loose his entire land to his wife. He was, thus, dependent upon his nephew Baldev Singh, who had brought him to the learned counsel. Showing full sense of responsibility expected from a counsel, Mr. Battas, moved an application for appointing next of friend of the appellant as he found him not to be in a position to enter into any compromise due to his weak mental health.
(2.) WHEN notice of the application was issued to the respondent, the efforts on the part of relatives to deceive simpleton Biru, started surfacing. Initially, on 4.12.2006, a statement was made before the Court that respondent-wife was willing to transfer the entire property back to her husband. The parties were accordingly summoned to be present in Court. On 21.12.2006, the counsel representing the wife pleaded no instructions. The Court accordingly observed that wife appeared to be backing out of the statement made on her behalf on 4.12.2006. She was directed to be served through S.S.P., Jind. When she finally appeared before the Court on 15.2.2007, it transpired that respondent Nanhi had re-married about 14 years ago and was not living with Biru. Though she had left Biru long long ago, but had still not left the greed about the land which she had succeeded in getting transferred on her name. Since she had been restrained from alienating the property in dispute during the pendency of the present appeals, she apparently seems to have connived with other relations of Biru to share the spoils with them by reaching a compromise and by transferring some portion of the land back to appellant Biru. The part so transferred would then simply go to the relatives of Biru with whom he is now staying, he being not in position to enjoy the property being not fully mentally fit. The respondent-wife, who has deserted Biru about 14 years ago, would have got portion due to this compromise, a perfect scene to deceive an innocent person. All this would have resulted but for the vigilance shown by Sh.Battas, who needs appreciation for performing his duty as a counsel with such diligence and ethics which helped the Court in seeing this move through and through. Keeping these peculiar facts in view, it was decided to hear the main appeal instead of passing any order on the application for disposing the appeal due to alleged compromise. No question of law was formulated at the time of admission of these appeals and Mr. Battas has now framed the following substantial questions of law that would arise in this case :- "1. Whether finding of fact contrary to evidence raise substantial question of law ? 2. Whether court's failure to appreciate material evidence would amount to non-application of mind and would it raise substantial question of law ? Mr. Battas has referred to Major Singh v. Rattan Singh (Dead) by LRs and others, 1997(2) RCR(Civil) 89 : AIR 1997 Supreme Court 1906 to say that rejection of evidence by lower Court on flimsy grounds would involve a substantial question of law. He would also refer to Ishwar Dass Jain (Dead) through LRs v. Sohan Lal (Dead) through LRs., 1999(2) R.C.R.(Rent) 714 : 2000(1) RCR(Civil) 168 to say that when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion, then it would be a substantial question of law, requiring adjudication. In this background these two appeals are being decided together as these are directed against two judgments and decrees passed by lower appellate Court arising out of the common dispute.
(3.) THE facts necessary to notice for deciding both the appeals are that Biru had filed a suit against his wife Nanhi, seeking declaration to the effect that judgment and decree dated 3.10.1980 passed in Civil Suit No. 278 of 3.10.1980 titled Smt. Nanhi v. Biru passed by Sub Judge, 1st Class, Narwana, was illegal, based on fraud and undue influence and as such, not binding on him (the plaintiff). A decree for permanent injunction, restraining the defendant Nanhi, his wife, from alienating the suit land was also sought. The appellant, who is a owner in possession of half share of the agriculture land measuring 160 K 8 M, was defrauded by the respondent-wife, who got a decree dated 3.10.1980 passed in her favour for transferring entire share of land to her, which was standing on the name of appellant. On learning about it, the appellant filed the suit claiming the decree to be illegal, void and not binding on his rights. He further pointed out in the suit that he was having a joint Khewat with Phulla and Ratia sons of Jawhara. There was some dispute amongst the co-sharers. Respondent Nanhi had taken the appellant, Biru, to the Courts at Narwana on 3.10.1980, saying that the suit land was to be partitioned with his co-sharers. She obtained thumb impression of the appellant on blank papers and obtained the decree impugned in the suit by practicing fraud and undue influence on him by getting a decree in her favour transferring the entire land on her name. It is further averred in the suit that no family partition had in fact taken place, as alleged in the previous suit and the possession had also not been delivered to respondent Nanhi. To show haste on the part of the respondent, it is pleaded that decree for agriculture land measuring 160 K 8 M was sought whereas the plaintiff was owner of 1/2 of the land measuring 160 K 8 M. Fearing that respondent was likely to alienate the suit property, the suit was instituted by the appellant. Respondent wife resisted the claim of the appellant by justifying the decree dated 3.10.1980 being valid, legal and binding on the rights of the parties. The allegations of fraud and undue influence were denied. The plea raised on behalf of the appellant that he was a simpleton was also denied and it was stated that he is a man of prudent mind and had voluntarily got this decree passed. She further claimed that she constituted a joint Hindu family with the appellant, who was bent upon to dispose of the suit land and so the parties had reached an oral family partition in the presence of respectables and relatives about a year prior to the filing of the previous suit. It was also claimed that suit land had been allotted to the respondent-wife and was in her possession as an owner. She also claimed right to dispose of the suit property being an absolute owner of the same according to law. Other pleas in regard to estoppel on the part of appellant to challenge the decree and about maintainability of the suit was also raised. From the pleadings of parties, following issues were framed :- 1. Whether the judgment and decree dated 3.10.1980 in civil suit No. 279 of 1980, Smt. Nanhi v. Biru is illegal, void, based on fraud and is not binding on the rights of plaintiff ? OPP 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the plaintiff is estopped from filing the present suit by his own act and conduct ? OPD 4. Whether the plaintiff has no cause of action to file the present suit ? OPD 5. Whether the plaintiff has not given the particulars of fraud ? If so, its effect ? OPD 6. Relief. ;