P L D 1964 Dacca 558 (PLP)

(2) As regards the capacity in which the landlord dispossesses the tenant ; (3) As regards the instrumentality or agency through which landlord causes the ouster."

8. In the present case, there is no dispute that all the landlords acquired these two plots from Faimuddin and that they did this by the two kabalas dated the 30th March 1937, and that one or two days after this, they settled the plot No. 1823 with defendant No. 4 and plot No. 93 with defendants 5‑7 and that since settlement defendants 4‑7 have been in possession of these two plots. Plaintiff's kabala from Samedan, Sonaban and Emarat is dated the 9th September 1940. The point for considera tion is whether the suit is bit with regard to these plots under the special Law of limitation, contained in Article 3, Schedule III of the Bengal Tenancy Act.

9. In the case of Mahendra Lal and others v. Nikunja Behari and others ((1954) 6 D L R 397), it has been observed: "Sometimes the landlord has a dual capacity e.g., when he claims by virtue of an auction purchase as well and in such a case the question arises whether the article will apply if the dispossession by the landlord is not qua‑landlord but in some other capacity. (c) If the landlord is responsible for the ouster, that is, if it is attributable to him or if he has a hand in the matter of dis possession, the Article will apply, although he might not have acted directly, but only through other instrumentalities or agencies. Thus where a co‑sharer landlord purchases a holding and settles the land with a third person who dispossesses the former raiyat with the help of the landlord's agents, this article will apply."

10. In the case of Sheikh Alain and other v. Atul Chandra Roy and others (40 C W N 173), and Intaz Ali Varkar and others v. Dip Charan Kapali and others ((1956) 8 D L R 223), it has been laid down that the provisions of Article 3, Schedule III of the Bengal Tenancy Act are attracted if the raiyat wants to recover possession by a suit from his land lord who has wrongfully dispossessed him from his holding. The reason or excuse given or supposed to be given by the landlord for dispossessing the raiyat has no bearing on the enactment.

11. In the case of Abdul Latif and others v. Hamed Gazi and others (38 C W N 61), it has been laid down that dispossession by the superior landlord of the heirs of a deceased under‑raiyat by settling the land with a third person is dispossession not merely of those heirs who are trespassers but also of the raiyat and that Article 3, Schedule III of the Bengal Tenancy Act would apply to a suit by the raiyat for ejectment of such third person.

12. The facts in the case of Gagan Chandra Nama Sarkar v. Sm. Goljan Blbi and others ((1949) 1 D L R 85), are that defendant No. 1 who was an occupancy raiyat under the Maharaja of Tippera, mortgaged his holding to the plaintiff‑appellant of that case. The plaintiff instituted a mortgage suit in 1931, got a decree and in execution of the decree purchased the suit land on 24‑11‑1934 and took symbolical possession through Court on 12‑7‑1935. Prior to the mortgage suit by the plaintiff, the landlord instituted a rent suit against defendant No. I in 1930, got a decree and in execution of the decree purchased the suit land in the Court sale on 22‑11‑1931 took delivery of possession of the land through Court in June 1932, and then settled the land with defendant No. 3, on 14‑12‑1935. On the 24th of January 1942, the plaintiff instituted the suit for recovery of possession on declaration of title. It was held that the settlement of the suit land by the landlord in favour of defendant No. 3 in December 1935 amounted to ouster of the plaintiff and that plaintiff's suit two years after the date of possession by the landlord or two years after the date of settle ment was barred by limitation under Article 3, Schedule III of the Bengal Tenancy Act.

13. It would follow from the principles laid down in the above‑mentioned cases that when the landlord intervene on the basis of a private purchase also from a co‑sharer tenant and settles the land with a third person, the suit by a transferee from some other co‑sharers of the holding for recovery of the settled land would be hit under Article 3, Schedule III of the Bengal Tenancy Act.

14. Mr. Fazlul Wahab, the learned Advocate for the respondents has contended that the principles laid down in the abovementioned cases would not be applicable to the facts of the present case, as in all cases the landlords granted settlement of disputed lands with third persons after auction purchases in Court sale, and after taking delivery of possession through Court on the basis of such purchases. Article 3, of Schedule III of the Bengal Tenancy Act applies to a suit for recovery of possession of land claimed by the plaintiff as a raiyat or an under‑raiyat against the landlord or against tire person or persons claiming through the landlord. There is no reason why the application of this Article, while applicable to dispossession by the landlord utter purchase in a Court sale, would not apply to dispossession by him after private purchase on the basis of a deed of transfer.

15. Mr. Wahab has also contended that Article 3 of Schedule III of the Bengal Tenancy Act would not apply to the facts of the present case as plaintiff was not in possession of the two disputed plots at the time of landlord's purchase or had no claim to the land at that time, his purchase being long after the transfer in favour of the landlords, and that consequently the question of dispossession of plaintiff would not arise. In support of this contention reference has been made to the case of Gosta Behari Pramanik v. Amija Kumar Das (40 C W N 135). The facts of that case are that on Rajani, a ralyat having a transferable occupancy holding, transferred the holding to one Jogendra who in his turn sold the same to one Radha. Radha mortgaged the holding to the plaintiffs. Radha was not recognised as a tenant by the landlords and Rajani remained the recorded tenant in the landlord's sherista. Thereafter, one of the co‑sharer landlords brought a suit for money against Rajani, obtained a decree and having in execution thereof purchased the holding as the property of Rajani, took delivery of possession on 25th June 1924 and remained in possession thereof since then. Radha had prefer red a claim in the proceedings for attachment but his petition was dismissed for default and he was kept out of possession. The plaintiff mortgages instituted proceedings to enforce their mort gages in 1926, got decrees and in execution thereof purchased the holding, and obtained symbolical possession on 20‑8‑1927. Their attempt to take actual possession having failed, the plaintiff; brought that suit on 17th August 1929. It was held that the suit was not barred 41ider Article 3, Schedule III of the Bengal Tenancy Act.

16. The facts of that case are distinguishable from the facts of the case before us. In that case, the plaintiff‑mortgagees on the basis of their decrees obtained symbolical possession on 20‑8‑1927, attempt having failed, they instituted the suit against the landlord‑defendant within two years, from the date of symbolical possession. But in the present case plaintiff purchased the two plots on 9‑9‑1940 and the present suit was filed on 11‑6‑1943, that is more than two years after his purchase. So time would run, if not from the date of landlord's purchase or settlement with defendants 4‑7 at least from the time of plaintiff's purchase.

17. In the case of Rakhal Das Nepal Promanik v. Khirode Bandu Nandi and others (A I R 1930 Cal. 247), it has been laid down that `Disposses sion' implies coming in of a person and the driving out of another from possession, while `discontinuance' implies going out of the person in possession and his being followed into possession by another. But the facts of that case are distinguishable so that the guiding principle too cannot be the same. In that case, plaintiff tenant abandoned the holding, Thereafter two co‑sharer landlords took khas possession of the suit land, and two years after that plaintiff brought that suit for recovery of possession. In that case, because of abandonment of the suit land by the tenant, it was held that there was no dispossession but mere discontinuance of possession. In the present case before us, there was no abandon ment of the suit land by the tenant.

18. It also may be noted here that the contention that the question of dispossession would not arise as plaintiff was not in possession has force as it is the specific case of the plaintiff stated in paragraph 4 of the plaint that plaintiff was dispossessed in Kartick, 1347 B. S. and as the suit is not within two years from that date.

19. It has also been contended by the learned Advocate on behalf of the respondent that by the sale of Faimuddin in favour of the landlords, there was no dispossession or turning out of Faimuddin and that by the kabala, he had merely put the land lords in possession and that consequently, no question of dispos session arises. Mr. Wahab has contended that predecessors‑in -interest of plaintiff were in constructive possession of these two plots through co‑sharer Faimuddin and that after them, the plaintiff has been in constructive possession through transferees from Faimuddin, and that as there was no dispossession of Faimuddin, it cannot be held that predecessors‑in‑interest of plaintiff were ousted from these two plots. Respondent cannot blow hot and cold at the same time, that is, he cannot say once that he was not in possession and again say that he was in constructive possession. The question is not whether Faimuddin was dispossessed, but the question is whether the other co‑sharers of Faimuddin were dispossessed, because of the transfer to the landlords. Faimuddin transferred these two plots to the landlords, and landlords, settled these two plots with third person who started to possess the land on the basis of the settlement. Other co‑sharers of the holding remained silent. It would amount to possession of the predecessors‑in‑interest of the plaintiff.

20. Mr. Wahab has further contended that at any rate, there was no dispossession, because landlords did not wrongfully enter the land against the will of the tenants. In support of this contention, he has referred to the following observation of Rankin, C. J., in the Letters Patent Appeal in the case of Satisk Chandra Bandopadhaya and others v. Hashentali Kazi and others (31 C W N 634). "Some of the cases suggest that the third column of the article roust exclude cases where the landlord dispossesses as auction‑purchaser and other cases take the view that excludes also cases of dispossession effected by the instrumentality of a Court of law. I have myself a somewhat strong opinion that those two propositions are a complete misunderstanding and misinterpretation of this article and that there is no sufficient reason for adding anything to the words which have been used by the Legislature except possibly adding the words `by the defendant' to the word `dispossession' in the third column. But the character of the plaintiff's claim here is to assert as against the defendant that they have a subsisting tenancy right in the land held by the plaintiffs under defendant ; the relief asked is the recovery of the land accordingly ; and it turns out that the only ouster in the case was effected not by the Court but at some date before November 1916, by the landlord. It is there fore not a case of ouster by the machinery of a Court of law and although I agree with Page, J. in the opinion that the meaning of dispossession is satisfied when the defendant‑landlord comes in against the will of the occupying tenant even by the machi nery of a Court of law, the present case does not actually require us to decide that question. The delivery of symbolical possession operated nothing as against the plaintiffs. As regards the contention that in order to avoid the operation of Article 3, it is sufficient to say that the landlord comes into possession as auction purchaser in the capacity of auction purchaser and not qua‑landlord. There, again, ft seems to me that the words of the Legislature‑are being seriously distorted. It is not a question of a capacity, but of incapacity. The plaintiff's case is‑and what alone matters is the real character of the plaintiffs' suit‑that the landlord's re‑entry was wrongful ..

21. In the present case the landlords' possession and the possession of the defendants 4‑7 in the two plots were wrongful. Although the two plots originally appertained to one holding, belonging to several co‑sharers, landlords exclusively possessed these two plots, which is indicated by the fact that these were settled afresh with defendants 4‑7, who possessed these two plots exclusively since the settlement with them. So the above observa tion in the case of 31 C W N 634 is of no help to the respondent in the facts of the present case.

22. The learned Advocate on behalf of the respondent has also referred to the case of Jurawan Singh and others v. Ranuarekh Singh and others (A I R 1933 Pat. 224). In this case, it has been held that if the possession of the tenants ceased on account of the land being submerged under water, and if after re‑appearance of the land, there was no actual taking of possession by the raiyats and no dispossession by the landlords. Article 3 does not apply. But the present case is not relating to any land re‑appearing after submersion. Reference has also been made to the case of Rudra Narain Singh and others v. Kedar Nath Singh and others (A I R 1937 Pat. 458). In that case, it has been held that where a tenant loses land by dilution, and it has been found in proceedings under section 145 of the Code of Criminal Procedure that the landlord took possession of the land on its re‑appearance, there is no dispossession of the tenant by the landlord, and that the suit by tenant for possession does not fall under Schedule III, Article 3 of the Bengal Tenancy Act. This case also has no bearing on the facts of the present case before us, as the suit as I have already stated, is not with regard to land re‑appearing after submersion. The view of the learned Additional District Judge that possession of the landlords after surrender or sale by Faimuddin to the landlords was that of co‑sharer tenants cannot be upheld. The suit regarding plots 93 and 1823 is hit under Article 3, Schedule III of the Bengal Tenancy Act.

23. The appeal is allowed partly on contest. The judgment and decree passed by the learned Additional District Judge are set aside so far as the disputed plots Nos. 93 and 1823 are con cerned. With this modification, the judgment and decree passed by the learned Additional District Judge are affirmed. The suit be dismissed with regard to plots Nos. 93 and 1823. Parties will bear their respective costs throughout as each of the parties has been partly successful with regard to the plea raised by each. Leave for appeal under clause 15 of the Letters Patent is asked for, but is refused. S. Q. Appeal partly allowed.