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Bheka Singh Vs. Nakchhed Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal41
AppellantBheka Singh
RespondentNakchhed Singh and anr.
Cases Referred and Chunder Kishore Dey v. Rajkishore Mozumdar I.L.R.
Excerpt:
bengal tenancy act (viii of 1885), schedule iii, article 3 - limitation--suit by occupancy-raiyat for possession. - .....iii, part i of the bengal tenancy act. the plaintiff appealed, not making the secretary of state a party to the appeal; as far as the decision against the secretary of state as to the suit being barred by limitation is concerned, it was final, not having been excepted to by the appellant. the learned subordinate judge dismissed the appeal on the ground that the secretary of state was not made a party to the appeal before him. a second appeal was preferred, and a division bench of this court held that under the circumstances the secretary of state was not a necessary party to the appeal, and therefore set aside the decree of the subordinate judge and directed him to try all questions on appeal. this has been done, and the subordinate judge has found that the suit, as it now stands.....
Judgment:

Trevelyan and Beverley, JJ.

1. This is an appeal from a decision on remand.

2. The suit was brought by the plaintiff, claiming to be an occupancy-raiyat, against the Secretary of State, who was his landlord, and also against a person who had been settled on the land by one of the officers of the Secretary of State. The Secretary of State put in an answer disclaiming any preference for the plaintiff or the defendant as his tenant.

3. The case came before the Munsif who found that the plaintiff had an occupancy-right, but he dismissed the suit on the ground that it was barred by limitation under Article 3, Schedule III, Part I of the Bengal Tenancy Act. The plaintiff appealed, not making the Secretary of State a party to the appeal; as far as the decision against the Secretary of State as to the suit being barred by limitation is concerned, it was final, not having been excepted to by the appellant. The learned Subordinate Judge dismissed the appeal on the ground that the Secretary of State was not made a party to the appeal before him. A second appeal was preferred, and a Division Bench of this Court held that under the circumstances the Secretary of State was not a necessary party to the appeal, and therefore set aside the decree of the Subordinate Judge and directed him to try all questions on appeal. This has been done, and the Subordinate Judge has found that the suit, as it now stands as against the second defendant who was put in possession by the Secretary of State, is barred by limitation.

4. It is contended before us that Article 3 only applies to a suit against the landlord. In the first place this suit was brought against the landlord, and the High Court did not hold that the landlord was not a necessary party to the suit. The suit was dismissed as against him on the ground that it was barred by limitation. But even if we could treat the suit at, this stage 61 the case as not being a suit against the landlord, we are not prepared to say that the broad proposition contended for is correct. It is perfectly true that it has beer hold that this article is limited to suits where the ouster complained of has been caused by the landlord or by somebody acting in concert with him or at his instance. We are not aware of any decision (there is none reported) which limits the article against the landlord alone, and holds that it does not apply to a suit against a person holding under the landlord. The omission to add the landlord as a party defendant would not in our opinion extend the period of limitation from two to twelve years. It is the circumstance of the ouster, and the fact that a particular person has ousted the plaintiff, which give rise to the necessity of his proving his occupancy right as against that person and therefore make it necessary for him to sue to recover possession of the land claiming it to be held by him as an occupancy-raiyat.

5. As far as we are aware, the effect of all the decisions and certainly of those cited to us to-day is not to restrict the article to suits against the landlord alone. The two cases referred to---Ramjanee Bibee v. Amoo Beparee I.L.R. 15 Cal. 317 and Chunder Kishore Dey v. Rajkishore Mozumdar I.L.R. 15 Cal. 450 were cases brought against persons who were trespassers not claiming under the landlord. Here we have a case brought against a tenant with whom the land was settled by the landlord.

6. In our opinion, the judgment of the Subordinate Judge is right, and the appeal must bo dismissed with costs.


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