D.C. Patterson, J.

1. The suit out of which this appeal arises was dismissed bythe trial court, but decreed by the lower appellate court. The Appellant beforethis Court is Defendant No. 3, who alone contested the suit in the courtsbelow. Defendant No. 3 is the mother of minor Defendants Nos. 1 and 2 and itwould appear from the pleadings that her interests are adverse to those of theminor Defendants.

2. The, main point urged before this Court is that theappeal to the lower appellate court was incompetent, the minor Defendants nothaving been properly represented in that court. It appears that, in the trialcourt, a pleader was appointed as guardian of the minors for the purposes ofthe present suit, but that the pleader guardian did not appear and contest thesuit on behalf of the minors. The same pleader, as was appointed as guardian ofthe minors in the trial court, was described as guardian of the minors in theproceedings before the lower appellate court and was duly served with a notice.He did not, however, enter appearance or take any other steps in the matter onbehalf of the minors. It is contended on behalf of the Appellant that thefailure of the pleader guardian to appear and take steps ought to have beenbrought to the notice of the lower appellate court by the Plaintiff and thatthe Plaintiff ought to have taken steps for the appointment of a fresh guardianfor the purposes of the appeal before that court. It appears to me, however,that, as the decree of the trial court had not yet become final, the litigation,for the purposes of which the pleader guardian had been appointed, was stillpending and that there was, therefore, no need for the appointment of a freshguardian for the purposes of the appeal. The mere fact that the guardian didnot enter appearance and take steps in connection with the appeal does not ofitself show that he was either unable or unwilling to act or that he was guiltyof neglect towards the minors. It may well be that he thought that it was inthe minors interests that they should not appear and contest the appeal morespecially as they had not appeared and contested the suit in the trial court.I, therefore, hold that the appeal to the lower appellate court was notincompetent and that the minors were duly represented before that court. Inthis connection it may be observed that the, point dealt with above was notraised (as it should have been) before the lower appellate court, and that,although the protection of the minors interests is one of the mainconsiderations in such matters, there is no reason to suppose that theAppellants apparent concern on behalf of the minors is at all disinterested.

3. The only other point urged on behalf of the Appellantrelates to the finding of the lower appellate court to the effect that the Plaintiffshad been in possession of the disputed land within 12 years of the institutionof the suit and that the suit was, therefore, not barred by limitation. It hasbeen pointed out that the parties are related to one another and that they are,or have been, occupying the same homestead. It is contended that the questionof limitation ought not to have been decided in favour of the Plaintiffs in theabsence of an express finding to the effect that the Plaintiffs had been inexclusive possession of the disputed land within 12 years of the suit,especially as the trial court had expressed itself as not being satisfied thatthe Plaintiffs had been in exclusive possession. I am, however, satisfied fromthe general trend of the judgment of the lower appellate court that theintention of that court was to find that the Plaintiffs had been in exclusivepossession of the disputed land within 12 years of the date of the institutionof the suit.

4. Both the points urged on behalf of the Appellant havingbeen decided against her, the appeal is dismissed with costs and the judgmentand decree of the lower appellate court are affirmed.

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Zarina Bibi vs.Wazuddi (07.01.1932 - CALHC)