1. The principal question that arises for consideration in this appeal is whether the findings recorded by the Court of appeal below are sufficient in law to constitute such adverse possession on the part of the defendants and their predecessors as would extinguish the plaintiff's title.
2. The parties are cosharers. The District Judge has found that the adverse possession that was exercised on the part of the defendants and their predecessors was hostile and notorious, that all through the period, which was well over twelve years, their rights were asserted, and that the sales made by them in assertion of such rights were attended with considerable publicity. He has found that these sales were overt acts of an unequivocal character to the exclusion of the rights of the plaintiff. On the question whether the plaintiff had knowledge of these overt acts the District Judge has only observed that:
if the plaintiff did not know it was simply due to his lack of diligence for which he cannot claim any benefit.
3. Now the findings recorded as above by the learned District Judge would seen to suggest that if the possession has been notorious in character and if the overt acts indicative of such possession are unequivocally referable to an assertion of a hostile title to the exclusion -of the plaintiff, such possession is sufficient, even though the plaintiff may not have had knowledge of the ouster, provided that if the plaintiff was diligent he would have known of it. The question in this appeal is whether this is a correct or adequate statement of the law as to the sufficiency of adverse possession for the purpose of extinguishing a cosharer's title. I am of opinion that it is not.
4. As regards diligence the learned District Judge appears to have reproduced with a little, though very important variation, a dictum of Mookerji, J. to be found in the case of Jagannath Marwari v. S. Chandni Bibi A.I.R. 1921 Cal. 647, which runs in these words:
It may be conceded that a cosharar cannot close his eyes and ears, nor by wilful inattention obtain an advantage from his lack of diligence.
5. It will be seen that the words of this dictum are very carefully weighed. What they mean is fairly clear from some passages that precede and follow. The judgment states:
Any act or conduct signifying his intention to hold, occupy and enjoy the premises exclusively and of which the tenant out of possession has knowledge or of which he has sufficient information to put him upon enquiry.... For this reason it has been held -sufficient that the acts of adverse possession are such in their character and attendant circumstances that a man reasonably attentive cannot but realise that an adverse right is asserted against him, But if no notice is given to the cosharar of the denial of his right the occupant must make his possession so visibly hostile and notorious and so apparently exclusive and adverse as to justify an inference of knowledge on the part of the co-owner sought to be ousted and of laches if he fails to discover and assert his rights.
6. There is, however, another passage in the aforesaid judgment on which much stress has been1 laid in support of the District Judge's view and which runs thus:
But what is essential is that the overt act which constitute a definite and continuous assertion of an adverse right must be of an unequivocal character clearly indicating an assertion of ownership of the premises to the exclusion of the right of the other co-tenants.
7. This passage merely repeats in different words the principle enunciated by Wood, V.C. in Thomas v. Thomas  2 K. & J. 79, (at p. 83), namely 'possession is never considered adverse if it can be referred to a lawful title.' It specifies the essentials of such possession, but does not purport to say that possession having those ingredients and without anything more would suffice to extinguish the title of a cosharer.
8. In the case of Ayenenussa Bibi v. Shaikh Isuf  16 C.W.N. 849 it was pointed out that in order to establish adverse possession by one tenant-in-common against his co-tenants there must be an exclusion or ouster and the possession subsequent to that must be for the statutory period. In that case Jenkins, G.J., referring to the cases of Deo v. Posser  Cowper 217 and Gulley v. Doe dem Taylerson  11 Ad. & El. 1008 statements of the law in which cases are to be found reproduced in the decision of the Judicial Committee in N. Varada Pillai v. Jeevarathnammal A.I.R. 1919 P.C. 44, Gangadhar v. Parashram  29 Bom. 300 and Bandacharya v. Srinivasacharya  5 Bom. L.R. 742, laid, down that mere non-participation of rents and profits would not necessarily of itself amount to exclusion but such non-participation or non-possession may in the circumstances of a particular case amount to adverse possession. He observed that what is sufficient evidence of exclusion must depend upon the circumstances of each and that amongst the circumstances to be taken into consideration are the relationship of the parties their position, the mode of life in the particular community to which the parties belong, the character of the property and other circumstances of a similar character. Besides proof by direct evidence exclusion or ouster may be presumed from circumstances. So in Culley v. Doe Dem Taylerson  11 Ad. & El. 1008 Lord Denman said:
But where the claimant tenant-in-common has not been in the participation of the rents and profits for a considerable length of time and other circumstances concur, the Judge will direct the jury to take into consideration whether they will presunia that there had been an ouster.
9. Also Ashhurst, J., in Doe v. Posser  1 Cowper 217 pointed out that long and continued acquiescence in the enjoyment of rents and profits may justify a jury in presuming either an actual ouster or a conveyance. In the same way the House of Lords in the case of Corea v. Appuhamy  A.C. 230 speaking of extinguishment of title of a person by reason of adverse possession on the part of his co-owners observed that:
nothing short of ouster or something equivalent to ouster could bring about the same result.
10 Exclusion or ouster involves not merely the act of the person ousting but the state of mind of the person ousted. Knowledge on the part of the latter therefore is essential. Such knowledge maybe proved directly or inferentially. On the principle of constructive notice it may also be proved by showing that the cosharer against whom the possession was exercised had sufficient notice of facts or sufficient information which would pub a reasonable person onenquiry and on receipt of which a reasonably attentive person could not but realise that he was ousted. That knowledge has to be found is also clear from a series of decisions amongst which may be referred those of Lokenath Singh v. Dhakeswar Prosad Narayan Singh  20 C.W.N. 51, or Narain v. Srikantha Roy A.I.R. 1922 Cal. 8 and Jogendra Nath v. Rajendra Nath A.I.R. 1922 Cal. 54. The District Judge has nowhere found that the plaintiff had the required knowledge. He has rather refrained from arriving at a finding one way or the other on the question of knowledge, being apparently of the view that if the plaintiff had been sufficiently diligent he would have known of the matter. Now in cases of this sort there is seldom if ever any actual notice of exclusion or ouster. But, at the same time it is not the law that a non-diligent cosharer is bound to suffer : he will suffer only when the circumstances unequivocally tell him that he has been excluded or ousted or when he has sufficient information that will put a reasonable man on enquiry which if pursued will unmistakably show that he has been excluded or ousted.
11. The result is that while the other findings namely those as to the character of the possession of the defendants in their predecessors, are well made there is want of a proper finding on the question of knowledge and for such, a finding one way or the other the case will have to be reheard by the lower appellate Court.
12. It has been brought to our notice on behalf of the respondents that the decision of the District Judge on the question of maintainability of the suit is erroneous inasmuch as the exclusion of the plaintiff's father's share from the claim is not practicable because that share cannot possibly be ascertained without knowing whether the plaintiff's mother had left other heirs besides those that are parties to the suit a point on which the trial Court's decision was against the plaintiff. The lower appellate Court will have to go into this matter again and record a proper decision thereon. With these remake the appeal is allowed the judgment appealed from is set aside and the case is remanded to the lower appellate Court for disposing of it after determining the two matters referred to above. Costs to abide the result.
13. I agree.