P L D 1961 Dacca 338 (PLP)

SATTAR, J.‑This appeal by defendants Nos. 5 and 6 arises out of a suit for recovery of possession upon declaration of plaintiff's title to the suit property.

2. Plaintiff's case is that one Dhani Ram Patni held a raiyati under the Howla of Hamidulla. This land is described in Kha schedule to the plaint. According to him he purchased this raiyati of Dhani Ram by a kabala dated the 11th Magh, 1324 B. S., and was in possession thereof. Dhani Ram, however, took raiyati lease of 2 gundns of the aforesaid land from the plaintiff, and the said land is described in Kha schedule to the plaint. It is claimed that the plaintiff later made the under‑raiyati of Dhani Ram khas, and took possession of‑the same except the land described in schedule Ga to the plaint where Dhani Ram was allowed to stay as a licensee. On the death of Dhani Ram, his widow defendant No. 2 also was allowed to stay in the said land as a licensee. It is said that the plaintiff instituted a title suit against one Ali Hyder, and recovered possession of the land of the Kha schedule, but allowed defendant No. 2 to stay in the Ga schedule land as before. Plain tiff then brought a Title suit No. 81 of 1950 against defendant No. 12 and her relations defendants Nos. 13 to 15, and in execution of the decree obtained in the said suit recovered possession‑of Ga schedule land. It is said that after the plaintiff obtained possession of the Ga schedule land, defendants Nos. 12 to 16 at the insti gation of the first class and second class defendants again raised some structures on Ga schedule land in Pous, 1357 B. S. It is further said that the principal defendants including defendants Nos. 5 and 6 dispossessed the plaintiff from the entire land in the last part of Pous, 1337 B. S., and since then the defendants kept the plaintiff out of possession.

3. The suit was contested by some of the defendants, but we are only concerned in this appear with the defence of, defendants Nos. 5 and

6. Their case inter alia in their written statement is that they are co‑sharer landlords of the disputed jama. They claim that as they dispossessed the plaintiff from the entire land of the raiyati in Pous, 1357 B. S., and was in possession of the disputed land for more than 2 years, the plaintiff's suit was barred by limitation under the provisions of Article 3, Schedule III of the Bengal Tenancy Act.

4. The suit was heard by Mr. A. Momith Chowdhury, Munsif, 1st Court, Lakshmipur. He by his judgment and decree dated 27th March 1956, decreed the plaintiff's suit in part. He held that the plaintiff was entitled to recover possession of the disputed land to the extent of the shares off' the other landlords excepting those of defendant, Nos. 5 and 6 in respect of which it was held that the suit was barred by limitation under Article 3, Schedule Ill‑of the Bengal Tenancy Act.

5. Defendants Nos. 5 and 6 appealed against the above judgment and decree, and the plaintiff preferred a cross‑objection. The appeal and the cross‑objection were heard by Mr. T. Hussain, Subordinate Judge, Noakhali, who dismissed both the appeal and the cross‑appeal. He affirmed the judgment and decree of the trial Court, and held that the plaintiff's claim in respect of the shares of defendants Nos. 5 and 6 only the total of which were found to be 4 annas 10 gandas 2 kranti and 18 tils was barred by limitation. It is against these judgment and decree that the defendants have preferred the present second appeal.

6. This appeal came up for hearing before our learned brother Asir, J., and has been placed before us on reference by him, and under orders of the Hon'ble Chief Justice as the question of law involved in this appeal is of general importance, and as there is no direct authority on this point.

7. The only point which arises in this appeal and has been canvassed by Mr. Mofakher on‑behalf of the appellants is that it should. have been held that suit was not only barred in respect of the shares of defendants, Nos. 5 and 6 only, but also in regard to the shares of the other co‑sharer landlords as defendants Nos. 5 and 6 dispossessed the plaintiff from the entire land, and remained in possession for more than 2 years.

8. On behalf of the appellants reliance has been placed upon the case of Mahendra Lal and others v. Nikunja Behari and others ((1954) 6 D L R 397), Nabin Chandra Saha and others v. Sheikh Wajid and others (24 C W N 382), Profulla Chandra Ghose and another v. Baburam Mondal and others (34 C L J 462), Parameswar Nomosudra v. Kali Mohun Nomo sudra (I L R 28 Cal. 127), Kunti Dai v. Jharu Lal Das Mazumdar and others (40 I C 907) and Abdul Kader Sarkar v. Shaikh Lal Mahomed and others (39 C L J 581).

9. We may at once point out that the decision in 39 C L J 581 does not support the contention of Mr. Mofakher, but on the contrary supports Mr. Das's contention, namely, that in circum stances as the present, suit would be barred only in respect of the shares of the dispossessing co‑sharer landlords, and the plaintiff can get a decree for possession in respect of the share of remaining co‑ sharer landlord who did not participate in the act of disposses sion. In the case reported in 6 D L R 397, while considering the question of limitation under Article 3 of Schedule III of the Bengal Tenancy Act, it was held that it was no consequence that the ejectment was by some co‑sharers only or the entire body of the landlords, and that it was also not necessary that each one of the co‑sharer landlords should plead special limitation. Zaman, J., on a consideration of the facts of that case found that the findings on the question of limitation of the Courts below were made under misconceptions of the pleadings, and, therefore, set aside the, judgments and decrees of both the Courts below to consider amongst others the question of special limitation pleaded in that case. The facts of the case reported in 24 C W N 382 are as follows :

10. The plaintiff and certain other persons were the heirs of one Rajabullah. Defendants Nos. 1 and 2 were co‑sharer landlords of the jote which was held by Rajabullah. On his death defen dants Nos. 1 and 2 dispossessed the plaintiff from the land after obtaining a kabala of the entire land from one of the heirs of Rajabulah. The plaintiff brought a suit for joint possession in respect of his share of the land, and the question raised in the case was whether the suit was governed by Article 3, Schedule III of the Bengal Tenancy Act. It was held that the suit was barred by the provision of the said Article, and in that view the suit was dismissed. In the case reported in 34 C L J 462, the facts are as follows : One of the heirs of a deceased tenant instituted the suit to recover his‑ share of the holding which was sold in execution of a decree for arrears of rent obtained by two co‑sharer landlords and purchased by them. In the rent suit the plaintiff was not made a party, and, therefore, his case was that he was not bound by the decree passed in the rent suit. The suit was resisted by the pur chasers in the auction sale on the ground that it was barred by Article 3, Schedule III of the Bengal Tenancy Act. The suit was dismissed by the Court of first instance, but one appeal the decree was reversed and the suit was decreed. The learned Subordinate Judge who heard the appeal overruled the plea of limitation on the ground that the dispossession being by a co‑sharer landlord as an auction purchaser, Article 3, Schedule III of the Bengal Tenancy Act was not attracted. It was held that Article 3, Schedule III of the Bengal Tenancy Act was applicable where the dispossession was effected by the tenants settled upon the land by co‑sharer landlords with the help of their Naib. As the‑finding with regard to who actually dispossessed was not clear the suit was remanded to the lower Appellate Court for arriving at such finding. In the case I L R 28 Cal. 127, the plaintiff sued for declaration of title and recovery of possession on the ground that the jote to question belonged to his father from which the defendants forcibly dispossessed him. Defendant No. 2 who contested the suit pleaded that as the land was held under a taluk of which he was a part proprietor, and as the defendant was kept out of possession for more than 2 years, the suit was barred by the special law of limitation provided in the Bengal Tenancy Act. It was held in that case on consideration of a Full Bench decision of the Calcutta High Court that Article 3, Schedule III of the Bengal Tenancy Act would apply irrespective of the fact whether dispos session was by a fractional landlord, the sole landlord or the entire body of landlords. In the case reported in 40 I C 907, the mains question was whether it was necessary in order to attract the provisions of Article 3, Schedule III of the Bengal Tenancy Act that the possession must be as landlord but the learned Judges also incidentally considered and held that dispossession by a co -sharer landlord would also attract the provisions of that Article.

11. It is evident from the facts and the decisions in the above cases that the contention of Mr. Mofakher that where a co‑sharer landlord dispossesses raiyat from the entire land of the raiyati, and the said raiyat institutes a suit for recovery of posses sion, if it is found that the raiyat remained out of possession for more than 2 years, the entire suit would be barred by limitation under Article 3, Schedule III of the Bengal Tenancy Act. The only decision which does not support that view as we have already indicated is the case 39 C L J 581.

12. Mr. B. C. Das has relied upon 39 C L J 581, and the decision in the case of Sheikh Sarafuddin Mondal and another v. Chandra Mani Gupta and another (5 C W N 405). The facts of the case reported in 39 C L J 581 are as follows: Plaintiffs purchased a non‑transferable occupancy‑holding, and then approached the landlords for recognition. All the landlords excepting those who contested the suit accepted the plaintiffs as their tenants in respect of the disputed land. The contesting defendants not only did not recognise the plaintiffs, but took possession of the entire holding. The plaintiffs then instituted the suit which was resisted on the ground that as they remained out of possession for more than 2 years, the suit was barred under Article 3, Schedule III of the Bengal Tenancy Act. This contention of the defendants was repelled on the ground that as the defendants did not claim to be the landlords of the plaintiffs they could not take benefit of the provisions regarding special limitation. It was held that they could not resist the claim of the plaintiffs, because in respect of the share of the other co‑sharer landlords, they did not' claim to hold the landlord's interest. In the case reported in 5 C W N 405, one of two co‑sharer landlords brought a suit to have his right estab lished to sell an occupancy holding in execution of a decree for money obtained by him. It was proved in the suit which was con tested by the other co‑sharer landlords that though they had dispossessed the raiyat more, than 2 years before the institution of the suit, the title of the raiyat was throughout recognised by all parties concerned, and the recognition was established even within 2 years of the institution of the suit. It was in such circumstances that it was held that the provisions of the special limitation con tained in Article 3, Schedule III of the Bengal Tenancy Act would not be attracted. It thus appears that though the decision in 39 C L J 581 gives indirect support to the contention of Mr. Das, the decision ins C W N 405 does not support him, but if the judg ment is read with reference to the fact of that case, it would appear that it lends some indirect support to the contention of Mr. Mofakher.

13. During the hearing of this appeal, we have been told by the learned Advocates of both the sides that the question raised in this case was not directly in issue in any reported decision. We, however, find that this is not the exact position This point was considered in the case of Annada Sundari Chandalini v. Kebulram Changa (7 C W N 542). The plaintiff in that case instituted the suit on the allegation that he purchased the jote of one Netai Changa, and that afterwards he was recognised as a tenant by the 12 annas talukdars, and then when he went to take possession, he was dispossessed by the defendants. The defendants took the plea of special limitation, and the trial Court held that the plaintiff's suit was barred by 2 years' limitation provided by the Bengal Tenancy Act. On appeal the learned Subordinate Judge held that the suit was not barred inasmuch as the dispossession being only by the landlord of a fractional share of the property, the limitation provided for by the Bengal Tenancy Act would not apply. It was held on a consideration of the facts of that case: " As dealt with by the first Court, and we understand the judgment of the lower Appellate Court to be in concurrence with that of the first Court on the merits of the case, the suit is no doubt in the terms of the limitation expressed in the Bengal Tenancy Act, inasmuch as it is a suit to recover possession of land claimed by the plaintiff as an occupancy‑raiyat, and the only question in doubt seems to be whether the fact that only some of the co‑sharers have dispossessed the plaintiff who claimed to be an occupancy‑raiyat, under them would affect the operation of this special law of limitation. This special limita tion is no doubt ‑ restricted to suits between persons occupying the position of landlord and tenant. for it is in regard to such relations that the Act has been designed. It seems to us, having regard to this fact, that it is of no consequence whether the ejectment was by same co‑sharers or by the entire body of land lords. In this view, we think that the suit is barred, and that consequently the judgment of the lower Appellate Court must be set aside, and that of the first Court which dismissed the suit restored." We further find that the view taken in the above decision receives support from the following observations in the decision in the case of Mohim Chandra Basak and others v. Kanailal Shah and others (33 C W N 1085) it was observed in that case as follows: "The Court of first instance disposed of the objection on the ground of special limitation by observing that the appellants were fractional maliks, and therefore, Article 3 of Schedule III of the Bengal Tenancy Act did not apply. This view has not been attempted to be supported before us by the respondent. Article 3 does not speak of dispossession by the landlord. It pres cribes the period of two years within which a suit by a raiyat or an under‑raiyat must be brought for recovery of this holding. But the cases have interpreted it to mean that as the Bengal Tenancy Act is an enactment relating to the relationship between the landlord and tenant the suit in which that article applies must be a suit by the tenant against this landlord. There is nothing in the law to show that such a suit must be against the entire body of landlord." In our opinion the view taken in 7 C W N 542 follows from the language of Article 3, Schedule III of the Bengal Tenancy Act, though it is not stated in the Article that the dispossession must be by the landlord. Decisions of Courts have settled that this is the kind of dispossession contemplated by the Article in view of the fact that the Bengal Tenancy Act deals with relationship between landlords and tenants. We, therefore, hold that the decisions of both the Courts below have proceeded on a wrong interpretation of the provision of Article 3, Schedule III of the Bengal Tenancy Act. It is not' disputed in this case that the dispossession by defendants Nos. 5 and 6 was in respect of the entire land of the holding, and, therefore, it must be held that the entire suit was barred by limitation in 'view of the provisions of Article 3, Sche dule III of the Bengal Tenancy Act.

14. The result, therefore, is that this appeal is allowed, the judgments and decrees of both the Courts below are set aside, and the suit of the plaintiff is dismissed. In view, of the facts of this case, however, we direct that each party will bear its own costs throughout. ISPAHANI, J.‑I agree. K. B. A. Appeal accepted.