Teja Singh, J. - (1.) THIS regular second appeal arises out of a suit for possession. The facts briefly stated are as follows: Before 1998 Samvat the revenue papers described the suit land as divided into 12 shares out of which 8 shares were held by the Plaintiffs and Defendants Nos. 3 to 5, two shares by Shibu Ram and Mst. Basanti and the remaining two shares by Mst. Badami. On 23 -11 -1997 the Patwari reported to the higher authorities that the Plaintiffs and Defendants Nos. 3 to 5 had been absentees from the village for more than seven years and recommended that their names should. be removed from the proprietary column of the revenue papers. A mutation was accordingly entered and notices were issued to the Plaintiffs. Some of them presented themselves before the revenue officer and time was given to them to establish their title by a civil suit. As they failed in this their names were removed on 4 -10 -1998. They brought the present suit on 28 -9 -2004, i.e. within less than six years of the date of the mutation. They alleged that they were co -sharers in the suit land and their names had been wrongly removed. They further alleged that the Defendants' possession of the entire land was illegal. The Defendant No. 1 resisted the suit. He denied the Plaintiffs' title and further pleaded that since they had been in adverse possession for more than 12 years the suit was barred by time. The trial Court found against the Defendant on both these points and granted the Plaintiffs a decree for possession of their two -third share of the suit land. On appeal by the contesting Defendant the District Judge modified the decree of the trial Judge to the extent that he reduced the land for which the suic had been decreed to 94 bighas and 3 biswas, to which the Plaintiffs were entitled according to the allegations made by them.
(2.) AS regards the finding of the District Judge that the Plaintiffs were the owners of 94 bighas and 3 biswas of land out of the suit land that has not been challenged before us. The only point urged by the Appellants' counsel is that the adverse possession of the Appellants had been proved and that the Courts below were wrong in holding that the suit was within time. Counsel laid stress upon the revenue entries in this connection and argued that the Plaintiffs had been out of possession for long and inference should be raised that the Appellants' possession was ad verse against them. First of all he referred us to the copy of the khewat of 1914 Samvat (Ex. PB). Secondly he referred us to the copy of the khewat of 1925 (Ex. DA). The latter document does not throw light upon the question with which we are now involved. The former no doubt shows that the possession was with one Hazaru who was one of the ancestors of the Appellants, but there being no evidence to show that the land to which this document related was the same land which is now the subject -matter of the suit, it cannot help the Appellants in any way. As regards the other revenue entries commencing from the year 1985 -86 as has been rightly remarked by the District Judge, they all help the Respondents, inasmuch as they show that even though the possession of the land was with one of the Appellants, that possession was in the capacity of a co -sharer. It is correct that in some entries the Plaintiffs and Defendants Nos. 3 to 5 or their ancestors were described as absentees but this fact by itself was not sufficient to establish that the possession of the Appellants was adverse. The law on the point has been summed up by Rattigan in his well -known Digest of Customary Law in the Punjab in paragraph 239 in which it is stated that the ancient custom of the country permits an absentee co -sharer in a village community to recover possession of his original holding upon his return to the village and the payment of losses irrespective of the length of his dispossession. A number of cases were cited before us by Mr. Jai Kishan counsel for the Appellants, but none of them laid flown a principle which is different from that enunciated by Rattigan. On the other hand it has been held in all the cases that adverse possession is a question of fact to be determined in the circumstances of each case and that the mere fact that one co -sharer is in possession of the land to the exclusion of the Ors. and he does not even pay the produce to the other co -sharers, does not mean that his possession is adverse to the absentees. The decision of Bhide J. in - 'Amar Singh v. Shiv Datt Kaur', AIR 1937 Lah 890 (A) upon which the Appellants' counsel lay emphasis; does not help him, because in that case the absentees were held to be out of possession for 80 years after an overt act of the person in possession. In the present case, as I have already observed, if .there was any overt act on the part of the Appellants it was in the course of the mutation proceedings which resulted in the removal of the Plaintiffs' name from the revenue papers and that was in the year 1997. This means that the Appellants' possession was not adverse to the Plaintiffs for more than seven years. The Rangoon case, - 'Maung Hla Pe v. Manika', AIR 1940 Rang 141 (B), which was cited by the Appellants' counsel helps the Plaintiffs rather than the Appellants. It was held in that case that in order to establish adverse possession by one tenant -in -common against his co -tenants there must be exclusion or ouster and the possession subsequent to that exclusion or ouster must be for the statutory period. What is sufficient evidence of exclusion must depend upon the circumstances of each case. Mere non -participation in rents and profits would not necessarily of itself amount to an adverse possession, but such non -participation or non -possession may in the circumstances of a particular case amount to an adverse possession. Now if we consider the circumstances of the present case in the light of what the learned Judge remarked in the Rangoon case it will be seen that the Appellants' possession did not become adverse to the Plaintiffs or other absentees till 4 -10 -1998 when the mutation was actually sanctioned. It may also be mentioned in this connection that even though the Appellants claimed that their possession had been adverse throughout they did not make any effort to have the Plaintiffs' name removed from the revenue records. The revenue records go to show that they did, not even assert before the revenue authorities that they were in possession as full proprietors, otherwise their possession would not have been described as that of co -sharers. In view of all these facts and circumstances we have no hesitation in holding that the finding of the District Judge on the question of limitation was correct. The appeal therefore fails and is dismissed with costs. Kesho Ram Passey, J.
(3.) I agree.;