Law:

Section:

(a) Civil Procedure Code (V of 1908),O. XLI, rr. 27 & 23-A-Negligence of next friend of minor-Next friend not producing necessary evidence-Court can remand case for record­ing additional evidence. (b) Limitation Act (IX of 1908), S. 6-Declaratory suit under custom by son who had been conceived but not begotten on date of alienation-Plaintiff cannot get advantage of S.6. Ranodip Singh v. Parmeshwar Parashad A I R 1925 P C 33 and Muhammad Khan v. Ahmed Khan A I R 1929 Lah. 254 (2) rel. JUDGMENT KAIKAUS, J.-This appeal arises out of a suit filed by Fazal Haq alias Abdul Khaliq respondent impeaching a sale made by his father Gulab Khan of occupancy rights in 8 kanals and 2 marlas of land in village Bher Khurd, Tahsil Kharian, District Gujrat. in favour of Ali Muhammad and Muhammad Ilahi respondents, on the ground that the land sold was ancestral and the sale was without consideration and necessity and was, therefore, invalid under custom. The suit was contested on a number of points which will appear from the following issues which were framed:- (1) Whether the plaintiff is the son of the alienor? (2) Whether the plaintiff's suit is within time? (3) Whether the suit land is ancestral qua the plaintiff and the alienor? (4) Whether the common ancestor of the plaintiff and the alienor occupied the suit land? If not, with what effect? (5) Whether the sale id suit was made for consideration and necessity? (6) Whether the plaintiff's suit is collusive and with what effect? (7) Whether the plaintiff has no right to sue in the presence of the other heirs of the alienor? All the issues, except the first, were decided in favour of the plaintiff. The suit, however, had to be dismissed on account of the finding on issue No. 1. It may be mentioned that the plaintiff was a minor when the suit was filed and continued to be a minor at the time of the appeal. On appeal, the learn­ed District judge remanded the case for allowing to the plaintiff a further opportunity to produce evidence with respect to the question whether the birth entry produced by him related to him. The learned District judge, held that the negligence of the next friend of the minor in not producing evidence…

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