P (PLP)

Profulla Kumar Roy for Rabiranjan Das Gupta, for Respondents. Akram, C. J.‑

This appeal by the, plaintiff arises out of a suit for the recovery of Khas possession of the plaint lands on declaration of plaintiff s title thereto as decree‑holder auction purchaser in mortgage execution Case No. 194 of 1934. Briefly stated the plaintiff's case was that the defendant No. 1, who was an occupancy Raiyat under the Maharaja of Tippera mortgaged his holding to the plaintiff ; that as the mortgage dues were not paid, the plaintiff instituted mortgage suit No. 280 of 1931, got a decree and in execution thereof purchased the suit lard on 24th November, 1934; that he then took delivery of symbolical possession through the Court on the l42th July, 1935, but in the meanwhile the defendant No. 1 in collusion with the officers of the landlord suffered a: rent decree to he passed against himself in a rent suit in 1930 and in execution of that decree got the properties ill suit sold at auction on 22nd November. 1931 that the landlord purchased the said properties and to took possession thereof some time in June, 1932 ; that the defendant No. 1 obtained a benami settlement of the said land from the landlord in the name of the defendant No. 3 on 14th December, 1935 and again had the same sold in the benami of his wife, defendant No. 2, and after that created a mortgagee in favour of defendants Nos. 4 and 5 that all the trans actions from the settlement taken by the defendant No. 3 to the mortgage in favour of defendants Nos. 4 and 5 were all manipulated by the defendant No. 1 and were fraudulent and collusive transactions : that, in fact possession of the land in dispute had remained with the defendant No. 3 throughout in spite of the sale under the rent decree aforesaid ; that no notice for annulment of the mortgage incumbrances under section 167 of Bengal Tenancy Act was served upon the plaintiff and; consequently, his right to the suit land purchased at the auction sale on 24th November 1934 had remained intact and he was entitled to Khas possession of the same, that when he wanted to take actual possession on 31st July 1936 he was foiled by the defendants. The defendants Nos. 2 and 3 alone contested the suit. They denied all the material allegations of the plaintiff and averred that the plaintiff's interest in the suit land ceased to exist alter the rent sale on 22nd November 1931 long before the mortgage sale on 24th November, 1924 ; that the settlement of the suit land by the landlord with the defendant No. 3 was a bona fide settlement and was not benami for the defendant; No. 1 : that the subsequent transactions thereafter were also valid and bona fide. The real question seems to be whether the plaintiff's claim to the suit land by right of auction purchase in the mortgage sale should prevail over the defendants' settlement obtained from the landlord, who bad pur chased the said land at a prior rent sale. The trial court decreed the suit, taking the view that the mortgagee, auction purchaser was entitled to have possession of the properties in the absence of any annulment of the mortgagee's interest by notice under section 167 of Bengal Tenancy Act (Bidhuranjan Satkar vs. Solomon Pramanik, 45 C. W. N. page 883), and that the rent sale was subject to the mortgage sale in view of section 52 of the Transfer of Property Act. . Defendants Nos. 2 and 3 thereupon appealed and the lower appellate Court reversed the decision of the trial Court and dismissed the suit, holding inter alia that this case was governed by the special law of limitation i.e., Art. 3, Schedule 3 of the Bengal Tenancy Act and as more then two years had elapsed between the date of possession by the landlords (June 1932) or at any rate by the defendant No. 3 (14th December 1935) and the date of suit by the plaintiff (24th January, 1942) plaintiff's claim was barred by limitation. Against that decision, a plaintiff has preferred the present appeal. It has been urged before me by the learned Advocate for the appellant that the landlord, purchaser, at a rent sale, is bound to follow the provisions of section 167 of the Bengal Tenancy Act, if he is desirous of annulling the incumbrances that in case he fails to do so, the holding purchased by him remains subject to the mortgage and Sital Chandra Majhi vs. Parbati Charan Chakravarry, 35 C. L. J. page 1 is relied upon in support ; it is further urged that the plaintiff mortgagee auction purchaser was entitled to claim recovery of possession from the defendants as the purchase by the landlord had taken place during the pendency of the mortgage execution case and was thus affected by the doctrine of lispendens. However, whatever that may be, it seems to me that on the plaintiffs own case and the findings arrived at by the Court of appeal below the Plaintiff cannot succeed, as the sult was instituted in 1942 the plaintiff's case was that he had never been in possession and that the defendant No. 3 or defendant No. 1 was in possession of the land since 14th December, 1935. regarding this aspect of the case in the course of his judgment ,the learned Judge in tire Court below pas observed as follows :‑‑ That possession must have ousted the plaintiff. It is idle for the plaintiff to say that he chose to allow leis tenancy to remain fallow, and that, therefore, he was not in possession. His cause of action did not arise in July, 1936 when he went to take possession ; it arose on the date of the lease to defendant No.

3. He was then put out of possession in consequence of the act of the landlord and of the navy tenant, defendant No. 3; inducted upon the land. It is however, argued, that no point of special limitation was taken before the Court of appeal below ; that no issue was framed upon it and no evidence was adduced in respect of it ; that it was a mixed question of fact and law and should not have been allowed to be raised for the first time before the lower appellate Court. But it has been pointed oat by tire learned judge in the Court below that the plaintiff is not in the least prejudiced on that account, the plaintiff's case being that he had never been in possession and that the defendant No. 3 was in possession from the date of the Kabuliyat namely l4tir December, 1935. The only question, therefore, that can arise on the above admitted facts would be whether in the above circumstances the possession by the 'defendant No. 3 amounted to dispossession by the landlord. On the facts and circumstances of this case, do not think that the learned judge in the Court of appeal below fell into any error in inferring ouster by the landlord on the basis o: his settlement with the defendant No. 3 aforesaid. Reference here may be made to the decisions in the cases of Sheikh slam v. Atid Chandra Roy 40 C. W. N page 173 ; and Mahraja Shashi Kanta Acharva Bahadur v. Nayjan Bewa 46 C. W. N. page

938. I am not impressed with the argument that although the case of defendant No. 1, mortgagor, may be governed by Art. 3 schedule 3 of the Bengal Tenancy Act the case of his mortgagee the plaintiff falls under the general law of limitation under Art. 144 of the Indian limitation Act. Reference in this connection may be made to the decision in the case of Mohin Chandra Basak v. Nai Lal Shah 33 C. W. N.: page 1085, where in a similar circumstance it was observed that the principle that the dispossession of the mortgagee, having commenced after the date of the mortgage: time should not run against him is a correct principle where the Limitation Act has to be applied but Art. 3 is a special provision of Limitation enacted for the benefit of the landlord and the general principle stated above cannot be held to be applicable in a case like this. If it is allowed to prevail, the result will be that a tenant out of possession is unable to recover possession of a holding from the landlord after the lapse of two years ; but his mortgagee is entitled to do so within 12 years of dispossession." In my opinion the contentions put forward by the learned Advocate for the appellant fail art I, accordingly dismiss this appeal; but I make no order as to costs. The cross‑objection is not pressed by the learned Advocate for the res pondents and is also dismissed without costs. A. H. Appeal dismissed.