1. This is an appeal by the plaintiffs and it arises from their suit in which they claimed to recover their share in the property in suit by equitable partition. According to the plaintiffs, they were entitled to two annas share in the suit property which is Maharki Watan in the village of Karjat. In this village there are three Takshims and the plaintiffs and the defendants belong to the first Takshim of Bahilurae.
The two other Takshims are Kadam Takshim and Sat-Samindar Takshim. The Bahilume Takshim is entitled to eight annas share in the watan whereas the two remaining Takshims are entitled to six annas and two annas respectively.
2. The plaintiffs allege that In 1949 the Collector of Ahmednagar had entered the name of their branch amongst the sharers of the Bahilume Takshim and the entry showed that the plaintiffs' branch was entitled to two annas share in the said watan. It is substantially by virtue of this entry that the plaintiffs brought the present suit to recover their two annas share. In support of their case, the plaintiffs produced a genealogy and some other evidence to show that they were watandars of the same watan.
The defence was that the plaintiffs did not belong to this watan, that the order of the Collector was ultra vires and that in any event the plaintiffs' right, if any, had been extinguished by limitation. On these points the trial court made findings in favour of the plaintiffs while the appellate Court has found against them. That is how the plaintiffs have come to this court in second appeal.
Two points have been raised before us for our decision in this appeal. The first point has been urged by Mr. Rele who contends that the Civil Court has no jurisdiction to consider the propriety of the entry made by the Collector in the Watan Register having regard to the provisions of Sections. 64 and 67 of the Watan Act. Mr. Rule argues that it was for the Collector to decide whether the plaintiffs were members of the same watan or not and that question, when once it is decided by the Collector, is concluded between the Parties unless within six years steps are taken by the aggrieved party to challenge that order by bringing a suit in a Civil Court.
On the other hand, Mr. Tarkunde argues that it is well-settled that the power given to the Collector under Section 64 is not so much to decide who is the watandar as to make an entry of the respective watandars in the Register maintained by him. Incidentally, the Collector may consider whether the individual whose name is sought to be entered in the Register is a watandar or not; but that decision is always subject to the final adjudication on the matter by a Civil Court. The lower Appellate Court has accepted this view and Mr. Rule challenges the correctness of the conclusion recorded by the lower appellate Court.
3. There is another point on which the lower appellate Court has made a finding against the plaintiffs and, In our opinion, this finding is enough to dispose of this appeal. The lower appellate Court has found that for over sixty years the plaintiff's branch has never received income from this watan. Non-participation in the income of the property for over sixty years may in a proper case be regarded by the Court of facts as proving ouster and that is what the lower appellate Court was disposed to do in the present case.
Since 1884, if not prior to it, the plaintiffs' branch has received no income from this property at all and the lower appellate Court, having considered the evidence adduced by the parties in the present case, has recorded its conclusion that it was satisfied that the plain-tiff's title, even if any, must be deemed to have been extinguished by exclusion. If that be so, it is really unnecessary to consider whether the plaintiffs are the watandars of the same watan or not.
The finding on exclusion remains in their favour that they are the watandars of the same watan. But, even so, their title as such watandars has been extinguished by non-partticipation spreading over sixty years. The question of ex-elusion is always a question of fact. Mr. Rele argues that before exclusion can be said to b proved, it must be shown that the plaintiffs branch had made a demand and the said demand had been refused by the defendants.
That undoubtedly is one aspect of the matter ; but that is not to say that a Court of fact cannot in a proper case infer exclusion from non-participation which spreads over a fairly long period, in the present case, non-participation has spread over sixty years and more and the Court of facts has found that from this non-participation exclusion can well be Inferred. If that is so, that Is a finding which cannot be challenged in second appeal. If the plaintiff have lost their title by exclusion, that must put an end to their present claim.