Judgment S.Sarwar Ali, J. 1. Defendants 3, 4 and 8, who are minors, are appellants in this appeal. The plaintiffs filed a suit under Order 1, Rule 8 of the Code of Civil Procedure, claiming that the defendants had made encroachment upon survey plot No. 548 which was used as reservoir of water for irrigation of the lands of the plaintiffs and other villagers. The plot in question was recorded as Gair Mazarua Am and was a ditch in which water used to accumulate. According to the plaintiffs they had right of irrigation from plot No. 548, their lands being situated in the proximity of the plot. Other villagers, as already stated, according to the plaintiffs, had also right of irrigation. The encroachment by the defendants is said to have been made in May, 1958. 2. According to the defence, the plot in question was not a reservoir or source of irrigation as alleged by the plaintiffs. The defendants claimed to have obtained settlement from the landlord about 25 years ago. They further claimed to have dug well and planted trees and they claimed to have installed Lord Shiva and Goraiya Baba in a portion of the plot. The defendants further claimed that tie suit was barred by limitation. 3. The trial Court dismissed the suit. On appeal the suit has been decreed. 4. Various contentions have been raised in the course of argument in the second appeal but I shall deal only with, the contention which, in my view, is sufficient to dispose of the appeal. But before dealing with this contention it will be necessary to state a few more facts. 5. The appellants were minors and still continue to be minors. In the trial Court the suit was instituted against them under the guardianship of their father. Since the guardian proposed in the plaint did not appear for the minors, the minors were placed under a pleader guardian, Shri Ram Prasad Singh, by an order dated 28-6-1960. It is not clear from the order sheet as to why this should have happened, but it is clear that Shri Ram Prasad Singh was appointed as a survey knowing pleader to find out the encroachment by an order dated 22-2-1961. Shri Ram Prasad Singh on his appointment submitted a report dated 16-6-1962. It is not clear from the order sheet as to why this should have happened, but it is clear that Shri Ram Prasad Singh was appointed as a survey knowing pleader to find out the encroachment by an order dated 22-2-1961. Shri Ram Prasad Singh on his appointment submitted a report dated 16-6-1962. In this report he reported that the defendants had made encroachment aver plot No. 548 to the extent mentioned in his report. The report is on the record of this case and has been submitted about two years after the filing of the written statement by Shri Singh as guardian-ad-litem. The judgment and the decree do not show that Shri Ram Prasad Singh appeared on behalf of the minors in the suit. On the suit being dismissed by the trial Court, the plaintiffs filed title appeal No. 65 of 1963. In this appeal the minors were again placed under the guardianship of their respective father, who, as already stated, had refused to appear for the minors. The pleader guardian-ad-litem was also made a respondent being respondent No. 9. My attention has not been drawn to any order of the lower appellate Court discharging the pleader guardian. The judgment of the lower appellate Court also does not indicate that Shri Ram Prasad Singh took any step or appeared on behalf of the minors. 6. The point that has been raised is that the pleader guardian having accepted to act as a Commissioner and having actually submitted a report disqualified himself from acting for the minors and protecting their interest. It was further contended that in the circumstances of the case there was complete non-representation of the minors both in the trial Court as also in the lower appellate Court. On these grounds it was contended that the decree of the trial Court as also of the lower appellate Court should be set aside and the case should be sent back to the trial Court for rehearing after a proper guardian is appointed. Learned counsel for the respondents contended that the fathers of the minors being parties to the suit, the minors were represented in the litigation. It was further contended that there was no prejudice to the manors on account of the alleged non-representation. 7. In my view, the contention rais-d on behalf of the appellants is correct, have already stated the relevant facts. It was further contended that there was no prejudice to the manors on account of the alleged non-representation. 7. In my view, the contention rais-d on behalf of the appellants is correct, have already stated the relevant facts. So far as the trial stage is concerned, there annot be any doubt that the pleader guardian was not in a position to act for and in the interest of the minors on ac-ount of his accepting the work entrusted ;o him as a pleader Commissioner. In fact, it appears that he ceased to take any interest in the litigation after he became the pleader Commissioner presumably because he had accepted the writ without realising that he was guardian-ad-litem of the minors. In the circumstances, it appears to me that the minors were not represented at the trial stage. So far as the argument of the respondents regarding representation is concerned, it is not possible to concede to that argument. Some decisions were cited by the respondents at the Bar, but they are all distinguishable on facts. Those were cases where minors were not made party in the litigation and it was held that the majors represented the minors in the litigation. Here the position is different. Minors have been made parties to the suit and were placed under the guardianship of a pleader. To my mind, the father could not, in the peculiar circumstances of the case, represent the minors. It was so observed in the case of Prahlad Das V/s. Dasarathi Satpathi, AIR 1940 Pat 117 "as the sons are parties to the suit, the father cannot he said to have represented them in the suit." Similar is the position here. 8. The non-representation continued even in the appeal before the lower appellate Court. The plaintiffs placed the minors under the guardianship of their fathers. This could not obviously be done, without any order of the Court, as the father of these minors had already refused to represent the minors. So far as the guardian-ad-litem is concerned, he has not appeared or taken any interest in the appeal resulting in a decree against the minors. In the circumstances of the case, the prejudice is patent, although I am of the view that it is not necessary to establish prejudice affirmatively. What is necessary to be established is a reasonable probability of prejudice having been caused. In the circumstances of the case, the prejudice is patent, although I am of the view that it is not necessary to establish prejudice affirmatively. What is necessary to be established is a reasonable probability of prejudice having been caused. This, in my view, has been established because of the fact that the trial Courts judgment was in favour of the minors, and no attempt was made on behalf of the minors to justify the ultimate decision and conclusion of the trial Court. 9. I am thus of the view that the appeal is fit to be allowed. In the circumstances of the case, the proper order to pass would be to set aside the judgment and decree of both the trial Court as also the lower appellate Court and it is ordered accordingly. The case will now go back to the trial Court for rehearing and decision of the suit after seeing that the minors are properly represented. There will be no order as to costs.