P (PLP)

The judgment of the Court was as follows :‑

JUDGMENT‑This is an appeal by the plaintiff. The facts of the case are that C, S. Flog Nos. 397, 398 and 736/844 of Mauza Bahuria Chatal Baid were the raiyati holding of Komaruddin and Mahabat Sheikh, each of whom had 8 annas share. Mahabat died leaving Meghu, Sanu and Alimuddin as his heirs. Alimuddin gave his share in favour of Meghu and Sanu, The plaintiff obtained a money decree against Meghu and Sanu and iii execution thereof auction purchased their interest in the property on the 22nd July 1929. On the 13th August 1930, possession was taken through Court. The plaintiff also auction‑purchased Komaruddin's share on the 21st August 1930, and on the 3rd January 1933, took possession. Alimuddin Sheikh raised objection in the proceedings for delivery of possession and claimed his right to remain in possession of plot No. 398 as usufructuary mortgagee from Meghu and Sanu. On compromise, the petition was allowed and Alimuddin .was allowed to remain in possession of plot No.

398. The Nawab Bahadur of Dacca was a co‑sharer landlord of the holding in question. He obtained a certificate against Komaruddin and the sons of Mahabat for arrears of rent and auction‑purchased the holding on the 9th October 1933. On .the 21st April 1936, he took symbolical possession through Court. According to the plaintiff, he was in possession of plat numbers mentioned above and towards the latter part of 1347 B. S, he asked Alimuddin to vacate plot No. 398 as the usufructuary mortgagee was satisfied by enjoyment of the profits of the land. Alimuddin took no notice of the demand after which the plaintiff entered upon that plot and grew paddy thereon. Before the crops ripened, the defendants reaped away the entire produce from Dag No. 398 and from a part of Dag No. 397 on the 18th Agrahayan 1348 B. S. A criminal case was instituted by the plaintiff and in that case the accused were successful. According to the plaintiff, being encouraged by, the result of the criminal case, the defendants dispossessed him from 'the entire lands in Baisakh 1349 B. S. whereupon he filed the present suit for recovery of possession on establishment of his title. Defendants Nos. 1 to 3 contested the suit on the ground that after the certificate sale, the Nawab Bahadur of Dacca announced by public notification that he would lease out the land. Among the candidate was plaintiff but Alimuddiu made the highest bid which was accepted and settlement was granted to him in 1343 B, S, since which date he had been in possession. As possession was taken on the authority of this settlement in favour of Alimuddin arid as more than two years had elapsed, the suit, according to the defence, was barred by limitation under Article 3 of Schedule 3 of the Bengal Tenancy Act. The defendant also denied plaintiff's title. The learned Munsif found that the plaintiff had established his title and that he was dispossessed in 1349 B. S. and as such the suit was not barred by limitation. On appeal by the defendants, the learned Subordinate Judge, Mymensingh, held that so far as C. S. Dags Nos. 397 and 736844 were concerned, they were hit under Article 3 of Schedule 3 of the Bengal Tenancy Act and as such the suit was barred by limitation and therefore the plaintiff could not succeed in getting possession pf those Dags as claimed in the plaint. Being aggrieved, the plaintiff has come to this Court. The finding of the lower appellate Court is that after the auction‑purchase by the fractional landlord, the Nawab Bahadur of Dacca, he settled the said two Dags with Alimuddin after widely announcing his intention to let out the said Dags to the highest bidder. No doubt the Nawab Bahadur of Dacca did not acquire anything more than the right, title and interest of the judgment debtor at the certificate sale, but the announcement by the Nawab Bahadur is significant and as a result, thereof, according to the learn ed Subordinate judge, the appellant through his nephew Hyatali and wife Saberannessa, was a candidate and they were really benamdars for the appellant. As Alimuddin, however, was the highest bidder, settlement was granted to him in preference to any other bidder. May be the appellant under a mistaken notion that his position was insecure, submitted to the Nawab Bahadur of Dacca to let out the said Dags in favour of Alimuddin who was the highest bidder for the same. After the settlement, it has been found by the learned Subordinate Judge, Alimuddin took possession of the said Dags in 1935 and dispossessed 'the appellant more than two years before the institution of the suit which was filed on the, 12th August 1942/2nd April 1943. With this finding of the learned Subordinate Judge, I am in complete agreement. It has now to be seen if the suit is barred under Article 3 of Schedule 3 of the Bengal Tenancy Act having regard to the facts above stated. On behalf of the appellant it has been urged that the suit in respect of the Dags in question was barred under the said Article. The argument advanced is that in order that the defendant‑respondents should succeed, they must prove that the appellant was dispossessed either by the landlord or by persons assisted by the landlord within two years. The contention is that if any person who has taken settle ment from the landlord and dispossesses a tenant already on the laid without tile assistance of the landlord, then the Article is not applicable. To support this latter view the case of Kumar Arun Chandra Sinha and another v. Sarojit Sen Gupta and others, reported in 57 C. L. J. p. 553 and the case ' of Haran Chandra Barai v. Madan Mohan Barai and others, reported in 25 C. W. N p. 102, have been cited on behalf of the appellant. The facts of the first cited case are different to the facts of the present case. In that case, the defendants maintained that the land had been surrendered by the plaintiff. It was not pleaded that it‑ was a case of dispossession by the landlord. In the' present case, however, on a reference to the written statement filed, it would appear that the present case is a case of dispossession by the landlord. The case reported in 25 C. W. N. p. 102, was dissented from in the case of Abdul Latif and others v Hamed Gazi and others, reported in 38 C. W. N. p.

61. In that case it was held that when one party is on the land and the landlord settles the same with another party by taking a kabuliat from him and the latter there after dispossesses the party on the land, the dispossession is dispossession by the landlord. At page 63, Mukherjee J. observes as follows‑:‑

. " As regards the first of these two grounds, it has no substance because when the landlord grants a settlement, it may well be presumed that he intends that the settlement would take effect and the consequence of this presumption must be that he expects that the person with whom the settlement is made would go upon the land and take possession of it. I think the Subordinate judge was right in holding that the reasonable conclusion upon the facts found .is that it was a case of the landlord bringing the dispossessor on the land." A similar view was taken in the case of Har Dayal Bhagat v. Nathuni Bhagat, reported in A. I. R. 1935 Pat.

372. Moham mad Noor, J. held that in order to apply the special limitation, it is rot necessary that dispossession of the raiyat must be by the landlord himself or by his hired servant. If the landlord autho rises a third person by making settlement of the land with him to dispossess a raiyat and that person armed with that settlement dis possesses him, the dispossession is by the landlord. Having regard to the facts of the present case and the cited authorities in support of the contention of the respondents, this case is hit by Article 3 of Schedule 3 of the Bengal Tenancy Act and as such the appellant cannot get any relief in respect of the two Dags in question. The learned judge rightly held that the special law of limitation is applicable in the present case. The suit was filed more than two years after the cause of action arose. This appeal, therefore, is dismissed with costs. Leave under clause 15 of the Letters Patent is refused. Appeal dismissed with costs. K. M. A Appeal dismissed.