P L D 1965 Dacca 110 (PLP)

MURSHED, J.‑This appeal is by plaintiff who instituted the suit for declaration of his title to the suit land and for recovery of its possession. Plaintiff's case, in substance, is, that the land in suit belonged to one Mahesh Chandra Das who died leaving two sons‑Nabin and Khirode‑a widow, Sandhya and a daughter, Satya Bhama. Nabin died unmarried leaving his mother Sandhya as his only heir. Subsequently Khirode also died leaving his widow, Mukta Keshi, as his sole heir. Plaintiff is a son of the said Satya Bhama, daughter of the aforesaid Mahesh Chandra Das. He claims the suit land as the sole surviving reversioner. Certain sale of a portion of the suit land by Mukta Keshi has also been assailed by him as, according to him, there was no legal neces sity for such alienation. It is averred by plaintiff that defendants Nos. 1 to 5, who are landlords of the jote, auction‑purchased the suit land in execution of a rent‑decree. After such purchase, the landlords settled the suit land with the contesting defendants. Plaintiff was minor at the time when the said decree was obtained and he, therefore, challenged the sale, in so far as his interest in the land in suit was concerned. The case was fought up to the High Court which held that the auction‑purchase by the landlords did not affect plaintiff's interest in the suit land. Plaintiff's interest in the land, which was the subject matter of the aforesaid rent suit, consists of the land in the present suit. The suit was contested by defendants Nos. 8 and 12 who traversed all the material allegations and averments made by the plaintiff. For the purpose of this appeal it is important to bear in mind that the case of the defendants, as accepted by the trial Court, is that the landlord‑defendants, after purchasing the suit land at a sale in execution of the said rent‑decree, obtained possession of the same and settled it (suit land) with the con testing defendants. The crux of the matter is that the said landlords had physically ousted the plaintiff from the suit land although it subsequently turned out, in accordance with a decision of this Court, that they did so dispossess the plaintiff without any legal title to the land. On the pleadings several issues were framed by the learned Subordinate Judge who tried the suit. The learned Subordinate Judge found the issues in favour of the plaintiff but dismissed the suit n,, against the plaintiff as it was held by him that the suit was barred by the special law of limitation under Article 3, Schedule III, Bengal Tenancy Act. Hence this appeal. At the hearing of the appeal Mr. M. A. Rouf, who appeared for the appellant, took us through the judgment pronounced by the learned Subordinate Judge as well as the records of the case. The only argument that has been advanced by him on behalf of the appellant is that the learned Subordinate Judge misdirected himself by holding that the suit was hit by the provisions of Article 3, Schedule III, Bengal Tenancy Act, which provided a period of two years' limitation. Mr. Rouf has contended that the possession of the suit land taken by the landlord‑defendants in pursuance of the above‑mentioned auction‑sale in execution of the said rent‑decree was something de hor their capacity as such landlords. Elucidating his argument he has further contended that as soon as the landlords took possession of the land they divested themselves of their character as landlords. The point that he has sought to make is that the purchase of the suit land at the said auction‑sale by the landlords was not made by them qua landlords but in their capacity as ordinary purchasers at a Court sale. He has, therefore, urged that the special law of limitation as provided by the said Article 3, Schedule III, Bengal Tenancy Act, has no manner of application in this case. He has next contended that, inasmuch as the auction‑purchase of the suit land was set aside by this Court only to the extent of the plaintiff's interest, plaintiff became a co‑sharer of the landlords in relation to the interest of the other judgment‑debtors the transference of whose land was not disturbed by the decision of this Court. With regard to the first contention of the learned Advocate for the appellant, namely, that Article 3, Schedule III, Bengal Tenancy Act, does not apply to dispossession by a landlord who had obtained possession of the suit land at an auction‑sale in execution of a rent‑decree against his tenant, learned Advocate has mainly relied on a decision of a single Bench of this Court in the case of Hamejaddi Howaldar v. Maminaddi Shaikh (P L D 1959 Dacca 304). Certain observations in the judgment that has been pronounced in the aforesaid case by Chowdhury, J. (as he then was) seem to lend support to the contention of the learned Advocate for the appellant. That decision can, probably, be supported on the peculiar facts of that case which is no authority for the wide proposition canvassed by the learned Advocate for the appellant. On the other hand, a later decision of a Division Bench of this Court in the case of Jnanendra Kishore v. Ismail Pramanik (P L D 1960 Dacca 124) is applicable to the facts of this case. In the aforesaid case the landlord in execution of a rent‑decree against the tenant purchased the suit land and thereafter, upon obtaining possession, settled the land with the defendant who dispossessed the plaintiff. It was held that even though the decree obtained by the landlord was subsequently set aside, but, as at the time of dispossession, the landlord, as landlord, settled the lands with defendant and the defendant dispossessed the plaintiff, it must be taken that the dispossession was by one who until the decree was declared void was a landlord within the meaning of Article 3, Schedule III, Bengal Tenancy Act. The judgment pronounced by Amin Ahmed, C. J., refers to various decisions of the Calcutta High Court and the decisions in the cases of Satish Chandra v. Hashemali Kazi (31 C W N 634), Kedar Nath Biswas v. Kamini Sundari Dasya (28 C W N 482) and Rudra Narain Maity v. Natabar Jana (18 C W N 353) were followed. The decision of a Division Bench of the Calcutta High Court in the case of Aminuddin Munshi v. Ulfatunnissa Bibi (13 C W N 108) is a leading decision which has subsequently been followed in that Court. It was held in that case (13 C W N 108) that where a landlord obtained a rent‑decree and the heirs of the raiyat were dispossessed by the purchaser at the sale held in execution of the decree, the two years' rule of limitation under Article 3, Schedule III, Bengal Tenancy Act, was applicable. In the case of Fani Bhusan Sarkar v. Pulin Chandra Mondul (21 C W N 976), another Division Bench of the Calcutta High Court, following the decision in Aminuddin Munshi's case held that Article 3, Schedule III, Bengal Tenancy Act, applied even when the tenant had been dispossessed by the landlord on the strength of a purchase of the holding in execution of a rent‑decree. In the case of Satish Chandra Bosu v. Nattiya Gopal Halder (21 C W N 978) it was held that where the landlord of a raiyati holding caused it to be sold in execution of a rent‑decree and, thereafter, purchased and settled it with new tenants, a suit by the former raiyat to recover the holding would be governed by Article 3, Schedule III, Bengal Tenancy Act and the decision in Fani Bhusan Sarkar's case was followed. Again, in the case of Pitambar Mahapatra v. Bhagabat Lal (24 1 C 908), another Division Bench of the said High Court held that Article 3, Schedule III, a Bengal Tenancy Act, was applicable even where the landlord, purchasing at a rent‑sale in the name of a former tenant, took forcible possession of the holding without delivery of possession through civil Court. It is no use discussing the decisions any further; it is sufficient to say that in the conflict of views the preponderance of weighty opinion runs counter to the argument advanced by the learned Advocate for the appellant. The gist of the matter A lies in the question: What exactly is the case which the plaintiff is seeking to make? If, in effect and in substance, plaintiff's case is dependent on a dispossession by the landlord, either directly or because of certain action taken by him, it is, in reality, a dispossession by the landlord and Article 3, Schedule III, Bengal Tenancy Act, will be applicable. We would take leave of this point by quoting some observa tions of Sir George Rankin in the case of Satish Chandra v. Hasemali Kazi. In delivering the judgment of a Special Bench in a Letters Patent Appeal in the aforesaid case, Rankin, C. J., observes thus: "Some of the cases suggest that the third column of the Article must exclude cases where the landlord dispossesses as auction‑purchaser and other cases take the view that it 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." Rankin, C. J., goes on to observe: "As regards the contention that, in order to avoid the operation of Article 3, it is sufficient to say that the landlord came into possession as auction‑purchaser in the capacity of auction‑purchaser and not qua landlord there, again, it seems to me that the words of the Legislature are being seriously distorted." After quoting, with approval, a passage from the judgment pronounced by Chamier, C. J., in the case of Jaimanglabati Misrain v. Jharu Lal Das Mozamdar ((1917) 2 P L J 567) Rankin, C. J., proceeds to add "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 defendant", 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 case before us the question is a simpler one. The learned Subordinate Judge, in the judgment pronounced by him, has observed thus: "But it has been admitted by P. W. 2, father of the plaintiff who looks after the affairs of the plaintiff, that it is the landlords who dispossessed them by settling the land with defendants Nos. 8 to 18." Mr. Rouf had very candidly admitted that he could not challenge that finding. The position, therefore, boils down to this that the root of the plaintiff's case is dispossession by the landlords themselves. In this view of the matter, there cannot be any manner of doubt B that the learned Subordinate Judge has rightly held that plaintiff's suit was hit by the provisions of Article 3, Schedule III, Bengal Tenancy Act, inasmuch as, admittedly, the suit was instituted long after the lapse of two years from the date of such dispossession. This is enough to dispose of the appeal before us. We shall, however, now deal with the only other argument which was rather half‑heartedly and faintly advanced by learned Advocate for the appellant. It was argued by him that, in the circumstances of the present case, plaintiff became a co‑sharer of the defendant‑landlords with regard to the suit land. This argument was advanced on the footing that the auction‑purchase by the said landlord‑defendants was set aside only to the extent of the interest of the plaintiff; the purchase of the interests of the other judgment‑debtors was not set aside. Learned Advocate has, therefore, urged that the defendant‑landlords became co‑sharers of the plaintiff. It was submitted that the disposses sion was by the co‑sharers of the plaintiff and not by his landlords as such. Learned Advocate has urged that, in the aforesaid context, Article 3, Schedule III, Bengal Tenancy Act, is not attracted. The fallacy of this argument is obvious. The grievance which the plaintiff is making in the suit is that he was wrongfully dispossessed by the said defendant‑landlords who, taking advan tage of an illegal writ of delivery of possession, ousted the plaintiff from the suit land. The contesting defendants subsequently obtained settlement of the land. There was, in fact, a physical ouster by the defendant‑landlords and there is no getting away from this position. To enter into a hair‑splitting argument on the basis of the judgment pronounced by this Court and to say that possession of the landlords is that of co‑sharers would be sheer casuistry. In effect and in reality it is dispossession by the landlords. Such is also the incontrovertible and unchallenged finding of the trial Court. The language of Article 3, Schedule III, Bengal Tenancy Act, admits of no such restricted meaning as has been sought to be given to its provisions. Therefore, there is also no substance in the only other point urged on behalf of the appellant. The appellant thus fails on the only two points which were mooted before us. The appeal is dismissed without any order as to costs. A. SUBHAN CHOUDHRI, J.‑I agree. K. B. A. Appeal dismissed.