P L D 1960 Dacca 124 (PLP)

AMIN AHMED, C. J.‑This appeal is on behalf of the plaintiff and it arises out of a suit for declaration of title and recovery of possession.

2. The facts material for the purpose of this appeal may be stated as follows: The suit land appertained to an occupancy holding of Akimannessa and Rameswar Bewa under the superior landlord Rani Sureswari Debi. Akimannessa and Rameswar Bewa settled the suit land in korfa tenancy with the plaintiff, and then defendants Nos. 1 and 2; in collusion with defendant No. 3, a bargadar of the plaintiff, dispossessed the plaintiff.

3. The suit was contested by defendants Nos. 1 and

2. Their defence was that the suit was barred by the general law of limitation and also by special law of limitation inasmuch as the holding in question was purchased by Sureswari Debi in execution of .a rent decree and she took possession of the same and settled it with defendant No. I and defendant No. 1 was in possession since then.

4. The learned Munsif, who tried the suit, decreed the suit holding inter alia that the plaintiff had under‑raiyati right in the suit land ; that defendant No. 1 was in possession of the suit land for a period of six or seven years and that the suit was not barred by the special law of limitation.

5. On appeal by defendants Nos. 1 and 2, the learned Sub ordinate Judge, though he held that the plaintiff had under‑raiyati right in the suit land, dismissed the suit on the ground that it was hit by the special law of limitation, that is, by Article 3 of Schedule III of the Bengal Tenancy Act (to be hereinafter referred to in this judgment as the Act only).

6. Against this decision, a Second Appeal, being Second Appeal No. 290 of 1953, was filed. The learned Judge, who heard the Second Appeal, affirmed the decision of the first Appellate Court and dismissed the Second Appeal.

7. Mr. Chowdhury, who appears for the plaintiff‑appellant, argues before us on the same lines, it seems, as he argued in the Second Appeal. The first point taken by him is that the learned Judge erred in holding that the suit is hit by Article 3 of Schedule III of the. Act. The learned Advocate develops his argument as follows. He points out that Sureswari Debi, the superior landlord, obtained a decree against Akimannessa and Rameswar for arrears of rent and purchased the suit land in auction on the 20th of December, 1944 ; the sale was confirmed on the 29th of January, 1945 ; the landlord settled the suit land on the 13th April, 1945, and since then defendant No. 1 has been in possession thereof ; but, on an application filed by the plaintiff under subsection (3) of section 174 of the Act, the decree was set aside on the 23rd of April, 1947, and the present suit was filed on the 1 I th of July, 1951 ; therefore, the decree, on the basis of which Sureswari Debi claimed to have settled the land with defendant No. 1 and to have dispossessed the plaintiff, is a nullity in the eye of law and, as such, the dispossession by defendant No. I at the instance of Sureswari Debi is not dis possession by or at the instance of the landlord. In support of this contention, the learned Advocate has relied on the case of Satis Chandra Bandopadhya and others v. Hashemali Kazi and others (31 C W N 634 (643)). We have also been taken through the following cases the cases of Kedar Nath Biswas v. Kamini Sundari Dasya (28 C W N 482), Rudra Narain Maity v. Natabar Jana (18 C W N 353), Srimani Basanta Kumary v. Nanda Ram Kaibarta Das and others (17 C W N 1149), Nabin Chandra Saha v. Sheikh Wajid (24 C W N 382) and Haran Chandra Barai and others v. Madan Mohan Barai and others (25 C W N 102).

8. Mr. Chowdhury has tried to distinguish some of these cases on which both the learned Judge and the first Appellate Court relied in arriving at the finding that the dispossession by the landlord must be by a person who was at the time of dis possession occupying or was in fact the landlord though subsequently he might cease to be a landlord. The learned Advocate has strenuously argued that in the cases relied upon by the Courts below the facts were different inasmuch as in the present case the right of Akimannessa and Rameswar or their heirs to get rent from the plaintiff who had a korfa tenancy was not extinguished by the auction‑purchase for arrears of ‑rent. The learned Advocate has also tried to establish that there is a difference between the case of a voidable decree fraudulently obtained as it was in Kedar Nath's case and that of a void decree, as in the present case, where the decree was held to be ab initio void inasmuch as it was obtained against dead persons.

9. In answer to this, Mr. Mesbahuddin, who appears for the respondents, has relied on a passage in the judgment of Rankin, C. J., in Satish Chandra's case. It is claimed by the learned Advocate that in that case the landlords brought a suit against the tenants some of whom were minors and the suit was decreed ex parte and, in execution of the ex parte decree, the property was purchased by the landlords who took both symbolical and actual possession and, after more than two years from the date of actual ouster, the tenants who were the minors in the rent suit brought a suit to recover possession after declaration of title on tile ground that in the rent suit they were not properly represented and their interests did not pass. Rankin, C. J., and Ghose, J., agreeing with Page, J., held that the suit was barred by Article 3 of Schedule III of the Act. The passage relied upon by Mr. Mesbahuddin runs as follows: " She claimed that the plots were her kamal land by reason of the fact that she had purchased the share to which, according to her, they were appurtenant or attached. I am not prepared to place such a narrow construction on Art.

3. It appears to me that if it is shown that the raiyat is in fact a tenant of the defendant who dispossessed him, in respect of the land claimed in the suit, then Art. 3 applies to the suit. The object of that Article seems to provide a short period of limitation for a suit by a raiyat to recover a holding from which he has been dispossessed by his landlord the reason or excuse, good, bad, indifferent, given or supposed to have been given by the landlord for dispossessing his tenant, appears to have no bearing on the enactment and much confusion must ensue if the applicability of the enactment is made to depend upon such considerations. It seems to me that that opinion is clearly right, because when you are applying the words of the Article to a case which ex concessis is a case to the effect that the ouster by the landlord was wrongful, it cannot be reasonable to add to the third column not merely the words "by the landlord" but the words "by the landlord as such". There is, in my opinion, some confusion of thought in such a suggestion. In the argument before us, it was debated whether or not in a case where a guardian ad litem was appointed for a minor without his consent the decree was a nullity or was merely voidable ; consequently whether in this case at the time when the execution sale of the holding was made and the landlord purchased it, the tenancy came to an end. The contention is on the one hand that the whole thing was void and the plaintiffs' tenancy went on as before and subsisted to the date of this suit. On the other hand, it is said that the decree was at most voidable, and, until it was avoided, it stood ; and, therefore, at the time when this sale was held, symbolical possession given, and the actual ouster was made, there was a subsisting decree, the plaintiffs' tenancy had come to an end and the dispossession was not by the landlord. To my mind, that consideration is altogether beside the point. First of all, while it may be clear that the suit con templated under Article 3 is a suit to assert against a landlord a right of tenancy in the property sold, it is a matter requiring some warrant to say that the dispossession must have been by a person who at that time was the landlord, but, in any case, what does it matter whether this decree was void or voidable ?"

10. We have considered the arguments and the cases cited by the learned Advocates for the parties, and, in our opinion, the learned Judge was right in holding that although the decree obtained by the landlord was subsequently set aside inasmuch as at the time of dispossession the landlord as landlord then settled it with defendant No. 1 and defendant No. 1 dis possessed the plaintiff, it must be taken that the dispossession was by one who until the decree was declared void was a landlord in the sense used in Article 3 of Schedule III of the Act. This seems to be also the view Suhrawardy and Page, JJ., in Kedar Nath's case. The observations of Suhrawardy, J., in that case have been referred to by the first Appellate Court, an extract of which may; however, be given below: "In my judgment Article 3 applies to a case where dis possession has been by a person who, at the time of disposses sion, in whatever way the dispossession might take place, either through a civil wrong or by means of criminal force, occupies the position of a landlord or possesses the character of a landlord and had the capacity of a landlord, the dispossession must be taken to have been effected by the landlord. In this view of the finding of the lower Appellate Court, I think that Article 3 is applicable to the facts of this case and the plaintiff's suit is barred by limitation. We may also quote the following passage from the judgment of Page, J., in the same case: "It is well‑settled that dispossession must be by a landlord. I desire to adopt the observation of Jenkins, C. J. in the case of Rudranarayan Maiti v. Natabar Jana. Referring to Article 3, his Lordship says : `This is an Article, which after a lapse of a certain time, deprives the plaintiff of his right to come to Court for the purpose of vindicating a claim which is his and, therefore, it must be clearly made out that any particular case falls within its terms. We recently had occasion to enter a protest against extending the terms of this Article by use of figures of speech and metaphors. What we have to see in each case is whether in fact there has been such disposses sion as the Article requires. That dispossession, it is conceded, must be by the landlord. There are two findings of fact in this case to which I must refer. The first is that the plaintiff was dispossessed of the premises more than two years before she launched the present suit, and the second finding is that at the time when she was dispossessed and up till the date when the suit was instituted she was in fact the tenant of defendants Nos. 1 and 2."

11. The next point urged by Mr. Choudhury is that in any event it ought to have been held that there was no ouster by an agent of the landlord who was authorised by the landlord. It is argued that the mere fact of settlement by the landlord with a different person ipso facto does not mean that the landlord has authorised that person to dispossess the plaintiff.

12. Mr. Mesbahuddin rightly points out that the learned Judge has come to a definite finding in his judgment that "the dispossession was made by Rani Sureswari through the agency of defendant No. 1"‑. It is also mentioned in the judgment, as pointed out by the learned Advocate for the respondents, that "it appears from the judgments of both the Courts below that it was accepted by the parties that the dispossession by defendant No. I was as an agent of the superior landlord." In this connection, Mr. Mesbahuddin has relied on the case of Abdul Latif and others v. Hamed Gazi and others (38 C W N 61).

13. The result, therefore, is that this appeal is dismissed with costs. CHAKRABORTI, J.‑I agree with my lord the Chief Justice. K. B. A. Appeal dismissed.