Bennett, J.This is an appeal from the decision of the Additional Subordinate Judge, Hazaribagh, affirming the decision of the Munsif of Hazaribagh is a suit in which the appellant claimed the recovery of possession of certain lands by the ejectment of the respondents.

2. In 1897, the appellants grandfather resumed possession of the land in question and remained in possession thereof, according to the appellant, until his death in 1913 or, according to the respondents father in 1911. When the appellants grandfather died, his father was a minor and the estate came under the management of the Court of Wards. The appellants father attained his majority on 6-4-1919, and on that date the estate was notified to be released. Pour days later, however, appellant father died and as the appellant was then a minor the Court of Wards remained in possession until he attained his. majority on 10-8-1937. During the appellants minority, the Court of Wards brought Title suit No. 162 of 1926 to recover possession of the land in question from the respondents, but the claim was dismissed. Mr. N.C. Mitter, the advocate in the suit advised an appeal, but no appeal was filed. In evidence Mr. N.C. Mitter stated that his opinion was sent to the Legal Remembrance but he did not know why no appeal was filed.

3. The two relevant issues in the suit were, firstly, whether having regard to the alleged grossly negligent conduct thereof by the Court of Wards, the decision in Title Suit No. 162 of 1926 is res judicata between the parties, as to which the learned Munsif found in the negative and the learned Subordinate Judge in the affirmative, and secondly, whether the suit is barred by limitation and adverse possession, as to which there are concurrent findings in the affirmative.

4. In the view which I have taken on issue 2 it is unnecessary for me to express any final opinion as to the proper answer on issue 1. As, however, the point was argued at some length before us and our attention called to the relevant authorities, I would remark that there are apparently conflicting decisions of this Court and that it is desirable that the point when it again comes before this Court should be referred to a Full Bench for decision. Prior to the decision of the Privy Council in AIR 1937 1 (Privy Council) , there was a consistent jurisprudence of this Court: see cases reported in Bhairo Prasad Sahu v. Ram Chandra AIR 1918 Pat. 211, Ganga Nand Singh v. Rameshwar Singh AIR 1927 Pat. 271 ; Mathura Singh v. Rama Rudra Parshad AIR 1936 Pat. 271, Kali Charan Singh v. Hirdai Narain AIR 1935 Pat. 24 that gross negligenoe on the part of a guardian adlitem will entitle the minor to the avoidance of proceedings decided against him.

5. In AIR 1937 1 (Privy Council) , however their Lordships of the Privy Council in refusing to extend the alleged principles relating to the negligent conduct of a former litigation by a guardian in the name of the minor to the negligent conduce of a former litigation by the dharmakarta of a public temple, stated that they were not concerned in that case to discuss the validity of the decisions illustrative of the above-mentioned principles and went on to say:

The protection of minors against the negligent acting of their guardians is a special one.... Their Lordships would only, add that they are not prepared to agree with the view expressed in Bapanna v. Yerramma AIR 1923 Mad. 718 that the principle of Section 44, Evidence Act, can be extended to eases of grosa negligenoe.

Their Lordships went on to enunciate the soope of Section 11, Civil P.C. as follows:

The provisions of Section 11, Civil P.C. are mandatory, and the ordinary litigant who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of Section 44, Evidence Act, which defines with precision the grounds of such avoidance as fraud or collusion. It is not for the Court to treat negligence, or gross negligence, as fraud, or collusion, unless fraud or collusion is the proper inference from. the facts.

6. Following this decision of their Lordships of the Privy Council there have been two un-reported decisions of Division Benches of this Court in First Appeal No. 168 of 1937 arid First Appeal No. 163 of 1941 which are directly contradictory of the earlier jurisprudence of this Court. This is a matter of considerable public importance because if a minor is not protected against the negligent actings of. his guardian, the door is left wide open to undetectable fraud and grave injustice as a result of which minor children would be completely deprived of their inheritance, I do not understand the reservation of their Lordships of the Privy Council in the above-mentioned case in any way to reflect upon the principles established by the earlier cases and protecting minors from the negligent conduct of a former litigation by their guardian ad litem except in so far as those cases purport to extend the provisions of Section a, Evidence Act, beyond the scope limited by the plain and obvious meaning of the words therein used, and it may well be that the principles protecting a minor from the negligent conduct of a former litigation by his guardian ad litem are to be founded not upon or by extension of or by way of analogy to Section 44, Evidence Act, but upon the proposition that the minor can only prpperly be considered to have been a party to the former litigation in so far as ha was properly represented therein by his guardian ad litem, and that when the guardian ad litem neglects a plain duty, the minor cannot be said to have been properly represented. Order 32, Civil P.C. contains no express provision to the effect that where a guardian ad litem of a minor is properly appointed thereunder to represent a minor, the minor shall be bound by the decision in the litigation as if ho had been a party thereto, and it may well be, therefore, that that question has been left open to be decided upon the facts of each particular case in accordance with the principles of justice, equity and good conscience.

7. Whatever may have been the date upon which the respondents father entered into possession of the lands here in question, it was a common ground that the appellants father was in possession thereof on 6th April 1919, when he attained his majority, and, that being so, it is clear that time began to ran against the appellants father as from that date. The death of the appellants father followed by the subsequent minority of the appellant himself did not operate-to stop or interrupt the running of the time, and it follows that twelve years thereafter the appellants right of action was barred by limitation.

8. It is clear, therefore, that on 9th August 1940, when the appellant commenced his suit, his right of action was statute barred. The proper remedy of the appellant was to have applied immediately after attaining his majority on 10th August 1937, for the extension of the time to appeal from the decision given against the Court-of Wards in Title Suit No. 162 of 1926. Mr. L.K. Jha for the appellant urged that if in fact there was gross negligence by the Court of Wards-in not prosecuting the appeal it would be lamentable that the appellant should now be-shut out from appealing against that decree and, in order to facilitate an application for extension of time for that purpose, he pressed us to record a finding as to such negligence. In the interests of justice, we have read the judgment in Title Suit No. 162 of 1926 and heard argument thereon. Having done so, I am of opinion that it is not desirable for this Court to record any finding one way or the other on the point.

9. In the result I can see no reason to differ in this appeal from the concurrent findings on the question of limitation arrived at by both the Courts below and I would, accordingly, dismiss the appeal with costs.

Manohar Lall, J.

10. I agree.