SADHU SINGH AND ORS. Vs. ASA SINGH

JUDGEMENT

(1.) THE essential facts giving rise to the question of law involved in this case may shortly be stated as follows.

(2.) ONE Atma Singh a Jat of village Karala sold some agricultural land in favour of Asa Singh by registered deed dated 6 -3 -1999 and this sale was challenged by Sadhu Singh and Babu Singh minors sons of Atma Singh vendor through their next friend Babu Singh son of Mehma Singh Jat of the same village by a suit for declaration that the land in dispute was ancestral and the sale was effected without any consideration and valid necessity and was thus ineffective against the reversionary rights of the Plaintiffs eons of the alienor. This suit was resisted by the vendee and the trial Court held that the land was proved to be ancestral but the sale was justified by consideration and legal necessity with the result that the suit was dismissed on 26 -11 -2004. It appears that Babu Singh who acted as a next friend of the minors Sadhu Singh and Babu Singh did not choose to file any appeal and submitted to the decision arrived at by the trial Court but one Bishan Singh preferred an appeal against the decree acting as the next friend of the minor Plaintiffs on 44 -2005. The Respondent's counsel in the District Court raised the preliminary objection that the appeal was incompetent because Bishan Singh had no right to prefer the appeal until and unless Babu Singh was removed under the provisions of Order 32, Rule 9, Code of Civil Procedure. Reliance was placed on Mt. Daulat Bai v. Shankat Rai, A.I.R.1931 Lah. 635 :, 133 I.C. 445 and the learned District Judge on the strength of the dictum laid down in this authority came to the conclusion that the appeal was incompetent inasmuch as no application was made for the removal of the previous next friend Babu Singh and there was no evidence that he did not perform his duty properly with the result that the appeal was dismissed on this short ground. Bishan Singh moved this Court on the revisional side through Mr. Kartar Singh advocate and it was contended that in the case of the next friend it was not necessary that the previous next friend should have been removed by any regular application. The argument advanced by the Petitioner's counsel was that there is a difference between a guardian ad litem and next friend and that whereas a guardian ad litem is constituted by the order of the Court, a next friend is automatically appointed and as such the appeal was competent although no application in the District Court was made for the removal of the previous next friend Babu Singh. It was further contended that the first appellate Court at any rate should have stayed the appeal proceedings and called upon the minors to proceed with the appeal. Reliance was placed on Amarchand v. Nemchand, A.I.R.1942 All. 150 :, I.L.R. (1942) All. 144; Lachhman Singh v. Mt. Chattad Kaur, A.I.R.1927 Lah 663 :, 103 I.C. 767; Ali Ahmad v. Said Mian, A.I.R.1924 Lah. 188 :, 4 Lah. 390 and two Patiala rulings reported in 5 Patiala 353 and 6 Patiala 331. Reference was also made to Order 32, Rule 4, Code of Civil Procedure, which reads as follows:

(3.) IN Amarchand v. Nemchand, A.I.R 1942 All. 150 :, I.L.R. (1942) All. 144 the difference between next friend and guardian ad litem, no doubt, has been explained but it clearly deals with the institution of the suit under Order 32, Rules 1 and 4. In this very authority it was further held that: