1. Two contentions have been raised in this case : the first is that with regard to the question of title, the defendants set up a new case on appeal to the lower Appellate Court.
2. We do not think, however, that any new case was set up. The plaintiffs' case was that all the properties belonged to their maternal grandfather Lobai, and that they were entitled to two thirds of the same. The case for the defendants was that the entire properties belonged to their father Budhai. The Court of first instance found in favour of the plaintiffs with regard to all the properties and gave them a decree for two thirds share as claimed. The Court of Appeal below disagreed with that finding with regard to properties other than the homestead, and with regard to the homestead, that Court found that the property originally belonged to Lobai Sircar. It cannot be said, therefore, that the lower Appellate Court decided the question of title upon a new case.
3. The second contention is that the Court of Appeal below is wrong in the view it has taken on the question of adverse possession as between co sharers. The learned Subordinate Judge was of opinion that because the defendants were in possession of all the lands in dispute, therefore, the plaintiffs' claim was barred by limitation.
4. As between co-sharers, however, the mere fact that one of the co-sharers is in sole occupation of the property does not, by itself, show that such possession is adverse. See Ayennessa Bibi v. Sheikh Isuf 14 Ind. Cas. 722 : 16 C.W.N. 849 and the recent decision in Balaram Guria v. Syama Charan Mondal 60 Ind. Cas. 298 : 24 C.W.N. 1057 : 33 C.L.J. 344 where the authorities on the point are collected.
5. The learned Subordinate Judge has relied upon the case of Chand Bibi v. Lal Mahomed 48 Ind. Cas. 692. But there the decision proceeded upon the ground that the plaintiff gate up her rights and never asserted them. The circumstances which have to be taken into consideration in such cases for determining whether the possession was adverse or not, are stated in the case of Ayennessa Bibi v. Sheikh Isuf 14 Ind. Cas. 722 : 16 C.W.N. 849. We think the question of limitation requires re consideration. But so far as the lands other than the homestead are concerned, it is found that the plaintiffs have failed to prove title. We accordingly set aside the decree of the lower Appellate Court in so far as the homestead is concerned, and remand the case to that Court in order that it may some to a finding, upon the whole evidence and circumstances of the case, whether there was exclusion or outser of the plaintiffs and their predecessor-in-title and then dispose of the case so far as concerns the homestead only according to law.
6. With regard to the homestead, the costs will abide the result, the value thereof being taken at Rs. 75 for that purpose.
7. The appeal, so far as relates to the properties other than the homestead, is dismissed. No order as to costs.