1. This Reference arises out of a second appeal filed by the defendant against a decree made by the Additional Subordinate Judge of Jessore reversing a decision of the Munsif, Bongaon. The facts which are relevant for the purposes of this Reference are as follows: Under the same set of landlords there were two occupancy holdings, one bearing an annual rent of Rs. 10/- and the otter bearing an annual rent of Rs. 95-13. as. In. execution of a decree for arrears of rent in respect of the Utter holding the landlords brought the former holding to auction sale and at that sale the appellant who is a complete stranger purchased the holding on 22-6-1937. As the execution and sale took place prior to the introduction of Section 168A in the Bengal Tenancy Act, the landlord had the right to put up to sale one holding for arrears of rent due in respect of another holding. On 8-7-1943 the plaintiff respondents instituted a suit alleging that though they were some of the heirs of the tenants of the two holdings, they had not been impleaded in the rent suit or in the execution proceeding and though their right, title and interest were not affected by the rent decree or the auction sale held in execution thereof, they had been illegally dispossessed by the auction purchaser. The material defence of the contesting defendant who is tile appellant in this Court is that the plaintiffs' suit is barred by the special law of limitation of two years as enacted in Schedule III Article 3 of the Bengal Tenancy Act. Upon evidence adduced by the parties the court of first instance found that the plaintiffs had 4 annas 9 pies share in the property in dispute and further that the contesting defendant was in possession ever since the date of his auction purchase on 22-6-1937. Upon these findings the learned Munsif dismissed the plaintiffs' suit on the ground that it was barred by the special law of limitation of two years. On appeal by the plaintiffs the Additional Subordinate Judge affirmed the findings of the trial court on the question of the plaintiffs' title, but reversed its decision on the question of limitation upon the view that the suit was not governed by the special law of limitation of two years but by the general law of limitation of 12 years. In the result, the court of appeal below reversed the decision of the trial court and decreed the plaintiffs' suit. Against that decision the plaintiffs (sic) filed a second appeal in this Court. At the hearing of the second appeal it was found that there are conflicting judgments of different Division Benches of this Court on the question whether dispossession by a stranger purchaser at an auction sale held in execution of a rent decree obtained by the landlord amounts to dispossession by the landlord within the meaning of Article 3 Schedule III of the Bengal Tenancy Act and accordingly that question has been referred to a Full Bench.
2. The Order of Reference contains a very useful summary of various conflicting decisions on different questions under Schedule III Article 3 of theBengal Tenancy Act. After examining the facts of the present case and after hearing learned counsel appearing for the parties we have however come to the conclusion that the first question referred to the Full Bench does not arise for consideration in the facts of this case and as it is of academic interest we do not propose to answer the first question. By that question the referring Judges ask whether the provisions of Schedule III Article 3 are attracted only when the dispossession of the plaintiff by the landlord is in his capacity as landlord or in any other capacity. Since the dispossession in the present case is not by the landlord, qua landlord or qua auction purchaser, that question does not require any answer in this Reference.
3. The second question has a direct bearing on the facts of this case and that question raises the point whether dispossession by a stranger purchaser at an auction sale held at the instance of the landlord is equivalent to dispossession by the landlord.
4. Schedule III Article 3 or the Bengal Tenancy Act requires that a suit for recovery of possession ot land claimed by the plaintiff as a raiyat or under-raiyat should be instituted within two years from the: date of dispossession. The language of the Article, however, is silent on two vital points. The first omission is that in describing the class of suits in, the first column to which the Article applies, it does not specify whether the Article is confined to suits against landlord only or extends also to suits against persons other than landlords. The second omission is that in fixing the starting point of limitation from the date of dispossession in the third column, it does not specify the person by whom the dispossession has been effected. These two omissions have led to a considerable divergence of judicial opinion as to the applicability of the Article. It cannot, however, be denied that since the Article finds place in a statute which according to its preamble is intended 'to amend and consolidate enactments relating to the law of landlord and tenant', the dispossession contemplated by the third column of the schedule means dispossession by the landlord. Dispossession by the landlord again does not mean dispossession by the personal intervention of the landlord himself and may include dispossession by an authorised agent of the landlord acting within the scope of his authority, in which case the act of the agent will be treated as the act of the principal. It is impossible to extend the scope of the Article beyond these limits because the Article curtails the period of limitation enacted by Article 142 of the Indian Limitation Act in a specified class of cases and must be strictly construed. I accordingly hold on a plain construction of the Article read with the preamble of the Bengal Tenancy Act and untramelled by authorities that the word 'dispossession' in the third column of the Article is dispossession by the landlord or by an authorised agent of the landlord acting within the scope of his authority.
5. In the course of the argument before us, a question was raised as to whether the preamble of the Bengal Tenancy Act also governs the class of suits described in the first column of the Article, An affirmative answer to this question would lead to the consequence that the application of the Article would be confined to suits against landlords onlyand would exclude its application to a case where the landlord is not a party. The decision in the present appeal has turned on the meaning of the word 'dispossession' in all the courts and no question was raised at any stage whether the Article applies to suits against landlords only. For this reason, I do not propose to express any opinion on that point and leave the question open.
6. Bearing in mind the aforesaid principles, I proceed to consider the question whether the dispossession by the appellant in the present case is tantamount to dispossession by the landlord. Upon the findings the appellant is a stranger purchaser who purchased the holding in execution of a decree for arrears of rent due in respect of another holding. He dispossessed the plaintiff respondents on the strength of the title acquired by him at the auction sale. The landlord was interested in the execution sale only up to the stage of sale and he disappeared from the picture immediately thereafter. The landlord never undertook to put the appellant into possession nor had he any hand in the dispossession of the plaintiffs. The appellant took possession of the land in dispute by dispossessing the plaintiff respondents on the strength of his own title under Section 26C of the Bengal Tenancy Act. Consequently,' it seems to me impossible to hold that the dispossession of the plaintiffs in the present case was dispossession by the landlord within the meaning of Article 3 Schedule III of the Bengal Tenancy Act. It has, however, been held in the case 'of Aminuddin Munshi v. Ulfatunnissa Bibi, 13 Cal WN 108: 9 Cal LJ 131 by Rampini A. C. J. and Doss J. that if an occupancy raiyat is dispossessed by an auction purchaser at a sale held in execution of a rent decree against some of the heirs of a deceased occupancy raiyat, the dispossession is dispossession by the landlord and Article 3 Schedule III applies to a suit by the dispossessed heirs who were not impleaded in the rent suit. The reason for the decision is that when the landlord brings the holding to sale, he impliedly undertakes to recognise the purchaser as his tenant and to make settlement with him, and in pursuance of that implied offer the auction purchaser purchases the land and Jakes possession of the same and then their Lordships proceed to observe as follows:
'If there had been no such implied offer and agreement to recognise him as a tenant he would never have purchased the land. In these circumstances we think that the landlord and the contesting defendant must be held to be acting in collusion in the act of dispossessing the plaintiff'.
With great respect to the learned Judges, who decided that case, I am unable to accept their decision as correct. The reasons given by them are open to two objections. In the first place, in the absence of any evidence to that effect the mere fact that the landlord brought the holding to sale does not justify an inference of implied undertaking to recognise the auction purchaser or of collusion. Even if there be an implied offer to recognise the purchaser as a tenant in such a case that would not, in my opinion, amount to a dispossession by the landlord of the tenants who had not been impleaded in the suit or in execution proceeding. The auction purchaser in such a case can never be said to be an agent authorised by the landlord to dispossess the tenantswho were not parties to the suit or execution, proceeding. The second reason why I cannot accept their decision as correct is that it has become obsolete after the enactment of the Bengal Tenancy Amendment Act of 1928 (Bengal Act IV of 1928) by which occupancy holdings have been made transferable subject to the provisions of the Act. Section 26C of the Bengal Tenancy Act, as it now stands provides that before the confirmation of the sale the auction purchaser is required to file a notice and deposit process fee for service of notice upon the landlord, Section 26C (5) reads as follows:
''The Court..... shall serve the notices byregistered post, and after receipt of such notice the landlord or landlord's agent as the case may be, shall not refuse to recognise the transferee as the tenant in respect of the holding ...... nor omit to enterthe transferee's name in the landlord's rent roll in the place of the transferor .......'
The plain effect of these provisions is that a purchaser at an auction sale has now a statutory right to be recognised, as a tenant by the landlord, At the time when Aminuddin's case, 13 Cal WN 108 was decided, a transfer of occupancy holding was not binding on the landlord and a landlord had an option to recognise or not to recognise the purchaser as his tenant, but under the present law, the recognition of the purchaser as a tenant does, not depend, upon any 'implied offer* by the landlord to recognise him as a tenant. The purchaser's right is now a statutory right which can be enforced even against the will of the landlord. I accordingly hold that Aminud-din's case, 13 Cal WN 108 was wrongly decided on principle and also that it has been superseded by the Bengal Tenancy Amendment Act of 1928. In the Order of Reference it is stated that in the case of Pitambar Mahapatra v. Bbagabat Lal, 24 Ind Cas 860:- (AIR 1914 Cal 654) Fletcher and Richardson JJ. followed the decision in the case of Aminuddin, 13 Cal WN 108. It is true, that in the body of the judgment their Lordships seem to accept the principles laid down in Aminuddin's case, 13 Cal WN 108. As the statement of facts in Pitambar's case, 24 Ind Cas 860: (AIR 1914 Cal 654) is somewhat obscure, we took the precaution of sending for the original record of that case and upon an inspection of the records it appears that the facts of that case were entirely different from the facts of the case before us. In that case defendant No. 2 held a tenancy under defendant No. 1. Defendant No. 2 sold the tenancy to the plaintiff. After the sale the defendant No. 1 (landlord) sued defendant No. 2 for arrears of rent and got a decree and in execution of that decree sold the tenancy and purchased it himself. After his purchase the defendant No. 1 (landlord) dispossessed the plaintiff. The plaintiff sued for recovery of possession on declaration of his title on the ground that the rent decree and sale were not binding upon him. The landlord defendant No. 1 took the plea that the suit was barred by the special law of limitation under Schedule III Article 3 of the Bengal Tenancy Act. This plea was overruled by the trial court on the ground that the dispossession of the plaintiff by defendant No. 1 was not in his capacity of a landlord but in his capacity of an auction-purchaser. On appeal the lower appellate court reversed the decision of the learned Munsif on thatpoint and the decision of the lower appellate court was affirmed on second appeal by this Court. On the facts of that case, however, the question which confronts us now did not arise. It is quite clear that there the auction purchase was by the landlord himself and the landlord after his auction purchase dispossessed the plaintiff. The question which arose in that case was question No. 1 of this Reference and I have already said that we refuse to express any opinion on that question. In the case before us the purchaser at the auction sale is not the landlord, but a stranger. In Aminuddin's case, 13 Cal WN 108 also the purchaser was a stranger. I fail to see how the learned judges who decided Pitambar's case, 24 Ind Gas 880: (AIR 1914 Cat 654) could apply the principle of Aminuddin's case 13 Cal WN 108. If, however, Pitambar's case, 24 Ind Cas 860: (AIR 1914 Cal 654) be taken to have followed the decision in Aminuddin's case, 13 Cal WN 108 I must, with respect, observe that that case also was wrongly decided.
7. I shall now proceed to consider the cases which, have taken a view contrary to that in Aminuddin's case, 13 Cal WN 108. Aminuddin's' case, 13 Cal WN 108 was decided in the year 1908. The first dissentient note was struck in the year 1913 by D. Chatterjee and N. R. Chatterjee JJ. in the case of Kamaldhari Thakur v. Rameshwar Singh, 17 Cal WN 817. There the auction purchaser was the landlord and their Lordships held that dispossession by the landlord as auction purchaser is not dispossession, by the landlord within the meaning of Schedule III Article 3 of the Bengal Tenancy Act. They further held in that case that dispossession effected by delivery of possession through Court is not dispossession by the landlord and observed as follows:
'If the special limitation does not apply where the landlord is himself the purchaser much less will it apply when the purchaser is a third person even if he may be said to be in collusion with landlord, by the mere fact of purchasing at the sale..... We therefore respectfully dissent from the view taken in that case (Aminuddin's case, 13 Cal WN 108)'.
As we are not deciding in this Reference whether the dispossession by the landlord as auction purchaser is dispossession within the meaning of Schedule III Article 3, the ground of dissent in Kamaldhari's case, 17 Cal WN 817 is not germane to the point arising for our consideration. The next decision is by Jen-kins C. J. and Mookerjee J. in the case of Basanta Kumari v. Nanda Ram, 17 Cal WN 1149. In that case the dispossession was neither by. the landlord nor by a stranger purchaser at an auction sale, but by a person who was brought on the land to assist the plaintiff in cultivation. In the plaint there was a suggestion of collusion between the defendant and the plaintiffs landlord. On 'those facts the courts below dismissed the plaintiffs suit on the ground that it was barred by the rule of two years' limitation. In reversing that decision Sir Lawrence Jenkins pointed out that as there was no relationship of landlord and tenant between the plaintiff and the defendant who was a mere licensee of the plaintiff, Article 3 Schedule III was not attracted to the facts of the case, If the decision had rested on that ground alone it would not have been ef much assistance to us since in this Reference we are not deciding the question whetherin order to attract Schedule III Article 3, the suit must be between a raiyat or under-raiyat and his landlord. There are however some general observations which are of some assistance to us in deciding the point which arises for our consideration. Those observations are:
'The theory of constructive dispossession bylandlords has been carried too far and we are notdisposed to encourage the idea that because it canbe said that the landlord has favoured the dispossession by others there has been a dispossession by him'.These observations, in my opinion, strike at the rootof the theory propounded by Rampini A. C. J. inAminuddin's case, 13 Cal WN 108 that the merefact that the landlord brought the holding to salejustifies an inference of collusion between the stranger auction purchaser and the landlord. I respectfully agree with observations of Sir, Lawrence Jenkinsas quoted above because they, are in keeping withthe language of Schedule III Article 3 read in the lightof the preamble to the Bengal Tenancy Act, Thenext decision is again by Jenkins C. J. and MookerjeeJ. in the case of Rudra Narayan v. Natabar Jana, 18Cal WN 353: (AIR 1914 Cal 50).. In that case aholding was purchased by the plaintiff at a previousrent sale but it was sold for the second time in execution of another rent decree obtained against theprevious tenant and the plaintiff was dispossessed bythe purchaser. The lower appellate court found thatthe landlord had no hand in the plaintiffs dispossession but that the plaintiff had been deceived by thelandlord's gomosta,. Sir Lawrence Jenkins reiteratedthe principle laid down by him in Basanta Kumari'scase, 17 Cal WN 1149 and held that Article 3 ScheduleIII did not apply. This decision is certainly an authority for the view that dispossession by an auctionpurchaser at a sale held in execution of a rent decreeis not equivalent to dispossession by the landlordunder all circumstances as was laid down in Aminuddin's case, ;13 Cal WN 108.
8. In the case of Krishna Chandra v. Satish Chandra, 20 Cal WN 872: (AIR 1916 Cal 883 (1)) Jenkins C. J. and N. R. Chatteriee J. held that the special law of limitation under the Bengal Tenancy Act did riot apply to facts which were very similar to the facts of the present case. There the plaintiffs' suit was for possession of land appertaining to their raiyati jama from which they had been dispossessed by the defendants. The defendants pleaded that in. execution of, a rent decree the jama was sold and purchased by a third party from whom the defendants' purchased by private treaty. The courts below dismissed the plaintiffs' suit as barred by the special law of limitation. In reversing, that decision, Sir Lawrence Jenkins observed as follows:
'I am aware that very extended operation has been attributed to Article 3 in one case at any rate (presumably referring to Aminuddin's case 13 Cal WN 108) but that is contrary to the general current of decisions and to the spirit of the Act. To deprive a tenant of his right of suit there must be a, plain dispossession within the meaning of Article 3'' In two subsequent cases, namely, those of Durgapada v. Bhusan Chandra, 21 Cal WN 373: (AIR 1917 Cal 791) and Ganesh Chandra v. Beraja Sundari, 46 Ind Cas 975: (AIR 1918 Cal 207 (2)), the facts were identical with the facts of the case before us, In both, the reported cases it was held that Schedule III Article 3 does not apply to the dispossession of the tenant by a stranger auction purchaser at a sale held in execution of a rent decree. In Durgapada's case, 21 Cal WN 373: (AIR 1917 Cal 791) the learned Judges noticed the conflict between the decision in Aminuddin's case, 13 Cal WN 108 and Kamaldhari's case, 17 Cal WN 817, but without making any attempt to resolve the conflict preferred to follow the principle laid down in Kamaldhari's case, 17 Cal WN 817. The decision in Aminuddin's case, 13 Cal WN 108 was cited before Fletcher J. both in the case of 24 Ind Gas 860: (AIR 1914 Cal 654) and in the case of Ganesh Chandra, 46 Ind Gas 975: (AIR 1918 Cal 207(2)) . In the former case Fletcher J. sitting with Richardson J. expressly followed the decision in Aminuddin's case, 13 Cal WN 108 though as I have already shown Aminuddin's case 13 Cal WN 108 had no application to the facts of that case. In Ganesh Chandra's case, 46 Ind Gas 975: (AIR 1918 Cal 207(2)) on the other hand the facts of which were exactly similar to those in Aminuddin's case, 13 Cal WN 108 Fletcher J. sitting with Samsul Huda J. laid down a proposition contrary to the ruling in Aminuddin's case 13 Cal WN 108 and purported to distinguish it, though on the facts it was indistinguishable. Be that as it may, on principle I have come to the conclusion that Ganesh Chandra's case, 46 Ind Gas 975: (AIR .1918 Cal 207(2)) was rightly decided.
9. To complete my review of authorities I need mention only two other cases, one of which is referred to in the Order of Reference and the other cited at the Bar. The Full Bench decision in the case of Ranijulla v. Ishad Dhali, ILR 29 Ca] 610, which'is referred to in the Order of Reference has no bearing on the facts of the present case. There an occupancy raiyat was dispossessed by a stranger and though the landlord had no hand in the initial dispossession of the plaintiff, the landlord subsequently recognised the trespasser as his tenant. It was held by the Full Bench that the subsequent recognition of the trespasser had no retrospective operation and that the suit was governed by the 12 years'rule of limitation. The other case cited at the Bar is more to the point. That is the case of Haran Chandra v. Madan Mohan. 25 Cal.WN 102: (AIR 192T PC 249) decided by Mookerjee C, J. and Pletcher, J. In that case the plaintiff who was an occupancy raiyat was dispossessed by the defendants who were lessees of the landlord. On those facts it was held that Schedule III Article 3 of the Bengal Tenancy Act had no application because the defendants made no case to the effect that they were authorised by the landlord to dispossess the plaintiff and there was no finding to that effect by the courts below. This decision favours a strict construction of Schedule III Article 3 as laid down in the case of Basanta Kumari, 17 Cal WN 1149 and Rudra Narain, 18 Cal WN 353: (AIR 1914 Cal 50). If dispossession by a lessee of the landlord does not amount to dispossession by the landlord within the meaning of Schedule III Article 3 of the Bengal Tenancy Act, in the absence of a finding that the lessee was authorised to dispossess the original raiyat, as was held in the above case, far less can it be said that dispossession by a purchaser at a sale held in execution of a rent decree obtained by the landlord by itself amounts to dispossession by the landlord within the meaning of Schedule III Article 8 bf the Bengal Tenancy Act. It is to be noticed that in the case of a settlement granted by the landlord the lessor is under an obligation to put the lessee into possession; but in the case of an auction sale held in execution of a decree the decree-holder is under no such obligation and there is ho warranty of title in a court sale. The purchaser purchases entirely at his own risk and he takes possession on the strength of his own title,
10. For the reasons given above, I have reached the conclusion that Aminuddin's case, 13 Cal WN 108, was wrongly decided and the case of 24 Ind Gas 860: (AIR 1914 Cal 654) in so far as it purported to follow Aminuddin's case 13 Cal WN 108 was wrongly decided though as I have already said that the question in Pitambar's case, 24 Ind Cas 860: (AIR 1914 Cal 654) was quite different from the question which arises for our consideration in this Reference. I further bold that the cases of Krishna Chandra, 20 Cal WN 872: (AIR 1916 Cal 883(17) Durgapada, 21 Cal WN 373: (AIR 1917 Cal 791) and Ganesh Chaodra, 46 Ind Cas 975: (AIR 1918 Cal 207(2)) the facts of which were similar to the facts of the present case were rightly decided.
11. Question No. 1 as referred to the Full Benchis as follows:
'(1) Are the provisions contained in Article 3 Schedule III of the Bengal Tenancy Act attracted only when the 'dispossession of the plaintiff by' the landlord is in his capacity as landlord or in any other capacity?'
Answer: The question does not arise on thefacts of the present case and need not therefore beanswered.
'(2) If in the execution of a decree obtained' against a tenant by some of his landlords a third party purchases the right, title and interest of the defaulting tenant' or the holding itself and the original tenant is dispossessed by him, is it to be deemed to be a dispossession by or on behalf of the landlord so as to attract a rule of special limitation as provided in Article 3 Schedule III of the Bengal Tenancy Act?
Answer: My answer to this question is in the negative. This Reference has been made in an appeal from appellate decree and the entire appeal has been placed before us for final decision. For the reasons given above, I would affirm the judgment and decree of the court of appeal below and dismiss the appeal with costs throughout, the hearting fee before us being assessed at five gold mohurs.
12. I agree.
P. N. Mookerjee, J.
13. I agree in the order proposed by my Lord,and, generally, also, with his reasons. I would, however, add a few words; of my own to explain broadly,in my own way, my own point of view. ;
14. This reference is on two points of law,which have been formulated by the referring Benchin the following terms:
'(I) Are the provisions contained in Article 3 ofSchedule III of the Bengal Tenancy Act attractedonly when the dispossession of the plaintiff by thelandlord is in his capacity as 'landlord or in any othercapacity?
(2) If, in the execution of a decree, obtained against a tenant by some of his landlords, a third party purchases the right, title and interest of the defaulting tenant or the holding itself and the original tenant is dispossessed by him, is it to be deemed to be a dispossession by or on behalf of the landlord so as to attract the Rule of Special Limitation as provided in Article 3 of Schedule III of the Bengal Tenancy Act?'
15. It is obvious that, in the facts of this case, the first of the above two questions does not require any answer, unless the position be that the second cannot be answered without the first. I do not think, however, that the two questions are so interconnected, inter-linked or inter-dependent. For purposes of this case, therefore, the first question is unnesessary and a decision of the second is plainly sufficient.
16. Before, however, addressing myself to the point immediately relevant for our present purpose, as aforesaid, I would make a few preliminary observations. The point involves consideration of the scope and limits of applicability of Article 3, Schedule III, of the Bengal Tenancy Act, though within the narrow compass, envisaged therein, in view of the particular facts of this case. That Article has been a constant source of trouble to judges almost from it very enactment. It has been productive of great divergence of judicial opinion in diverse forms and on manifold aspects. That the Article prescribes a period of limitation for certain suits for recoveryof posseession is plain enough on the face of it. That again, it applies only to such suits by raiyats or under-raiyats is also clear. Thus far, there is nodifficulty. But, then arises the question, by whom is to be the dispossession for attracting this particular Article and the subsidiary question as to who are to be defendants in suits, to which the Article will apply. Many, indeed, are the problems which have arisen on these two aspects and the different points of view, which have emanated from their consideration, are as varied in their nature as the controversies themselves, which have arisen on them and which they purport to represent. This, naturally, led to a confused state of the law on the point and, although the sky began to clear up gradually, the clouds did not disappear but gathered and collected themselves in patches in particular regions over particular areas.
17. The Article, as I have said above' provides for limitation in regard to certain suits for recovery of possession. Prior to this Article, such suits used to be governed by the general law of limitation as enacted in the Indian Limitation Act. The Article is part of the Bengal Tenancy Act, which is an amending and consolidating statute relating to the law of landlord and tenant and, then, again, only to certain enactments in that behalf. In view of its said preamble, the Act cannot extend, or have operation, beyond the law of landlord and tenant, and, even as to that, it is not exhaustive and does not form a complete Code, as, obviously, it seeks to amend and consolidate (only) certain enactments, relating to that law. The object being thus clearly defined, the scope itself becomes limited, and the statute, in no part of it, can operate beyond that particular field. This is true of the statute in its entirety and thus also of Section 184 (including the connected Schedule III), which prescribes, by reference to the said Schedule III of the Act, the special law of limitation, for, inter alia, suits, mentioned therein, against its respective Articles, thus taking them out of the general law of limitation to that extent. It is this (ruth and its realisation which led to the fundamental concept that 'dispossession' in Column 3 Article 3 is 'dispossession by the landlord'. It is true that that was not enough for solving all difficulties, . as the phrase 'dispossession by the landlord', in its turn, was itself capable and susceptible of different interpretations. In its narrowest sense, it would mean only actual dispossession directly by the landlord as such or qua landlord. Just broadening the connotation of the term, it would embrace also actual dispossession directly by the landlord, not qua landlord, but otherwise, or in any other capacity too. In its third or still wider sense, it may mean and comprehend, further, constructive dispossession by the landlord, qua or otherwise, and this constructive dispossession again, may, in its widest, include dispossession by any person, with whom, the landlord has a connection, however, remote. The earlier or the first noted extreme, to wit, the narrowest sense,-- and the second sense too, --as aforesaid, need not concern us now, when the first point under reference is not being answered on this instant occasion, and we may safely consider the present case in the light of the other extreme or the third and wider sense of the expression 'dispossession' or 'dispossession by the landlord', as given above, but taking care to define the outer limit in that'behalf, relevant for that purpose. Indeed, it is only this outer limit which falls to be discussed and determined for answering the actual point, now'beforc us.
18. In the above context, dispossession by the landlord need not be confined to direct or actual dispossession by him and it may well be either by himself or through his authorised agent or instrumentality, express or implied. I do not think, however, that, having regard to the preamble of the Act which broadly defines its scope, purpose and object, the term should be further extended,
19. The point, then, is whether a third parly auction-purchaser in a landlord's sale or, a sale, held at the instance of the landlord, would in the matter of his (the auction-purchaser's) act of dispossession, come within the landlord's authority, agency or instrumentality, as aforesaid. It is well-known that, to an auction purchase, the doctrine or principle of 'caveat emptor' applies and, therefore, a purchaser at such sale has no warranty of title. He has also no warranty of possession, so far as the decree-holder landlord is concerned. He is no doubt, entitle to ask for and obtain possession through court or take possession otherwise on the strength of his aforesaid auction-purchase. But the landlord decree-holder has no liability, obligation or responsibility in the matter. In such circumstances, he (the third party auction-purchaser) cannot claim to come within the scope of the expression 'landlord', however much this latter expression may include his (landlord's) agents, and instrumentality, express or implied. That, indeed, has, practically, been the accepted position or point of view, except, possibly, in the single decision in the case of 13 Cal WN 108, and it is quite plain and manifest that the preponderance, if not the concensus, of judicial opinion on the point is, unquestionably, in favour of that point of view, which, as I have shown above, is the only possible view on reason and principle. I would, accordingly, hold that a third party auction-purchaser cannot claim the benefit of the Article, merely because the sale, at which he has purchased, was in execution of a decree, obtained by the landlord against the tenant.
20. A few words now upon the decided cases,which, if I may say so with respect, have all been neatly summarised and classified in the order of reference.
21. I have referred above to Aminuddin Munshi's case, 13 Cal WN 108. That is, practically, the only decision on the point, which tends to supr port directly a different or contrary conclusion orconnotation. The reasoning, however, is far fromconvincing. I am fully conscious that Rampini A. C. J., -- a great name, so far as the Bengal Tenancy Act is concerned, -- presided over the Letters Patent Bench, which took the said contrary view and reversed the decision of Brett, J., who held substantially the same view as ourselves on the point; now before us. But, with every respect, due to that great Judge (Rampini, A. C. J.) and the other learned Judge (Doss, J.) who sat with him on the occasion, I am wholly unable to accept their line of reasoning. Granting that the landlord decree-holder impliedly undertook to recognise the auction-purchaser as tenant, it is difficult, -- if not impossible and wholly illogical, --to infer, merely from such undertaking, any authority, express or 'implied, to dispossess the old tenant, or, what is more striking, a collusion between the landlord and the auction-purchaser in the matter of such dispossession. The Letters Patent Bench also appears, at one place of its judgment, to have laid stress upon the landlord's recognition of the auction-purchaser as tenant, subsequent to his dispossessing the old tenant. That, however, would be directly opposed to its own earlier observations in the very same judgment and to the Full Bench decision of this Court in the case of ILR 29 Cal 610, overruling, on the recommendation of the referring Bench, of which Rampini, J., himself, as he then was, was the presiding Judge, the earlier contrary view in Hara Kumar Nath v. Nasaruddin, 4 Cal WN 665.
22. Aminuddin Munshi's case, 13 Cal WN 108, therefore, would receive no support either from principle or authority and its reasoning would be extremely weak and indefensible. Weaker still is the reliance placed upon it in the subsequent case of this Court, 24 Ind Gas 860: (AIR 1914 cal654), and its incidental approval in Fani Bhusan Sarkar v. Pulin Chandra Mondal, 21 Cal WN 976: (AIR 1917 Cal 465), both of which, on their own facts, were materially different, --and plainly distinquishable, -- from Aminuddin Munshi's case, 13 Cal WN 108, and would, in no sense, attract the principle, purported to have been laid downin the said cited decision. aS shown above by my Lord, the judgment in Pitambar Mahapatra's case, 24 Ind Gas 860: (AIR 1914 Cal 654). contains a vital misstatement of fact, -- apparently, a cleri-cal error oR an accidental mistake, though somewhat serious in character, --and, on its. true facts, the case would clearly be one of dispossession by the landlord, subject to the infirmity if any, of the 'qua landlord' theory. In Fani Bhusan Sarkar'a case, 21 Cal WN 976: (AIR 1917 Cal 465), too, the actual position was substantially the same and there was no dispossession by any third party auction-purchaser at the landlord's sale (for rent) and that decision also, on its own facts, would not, strictly, attract Aminuddin Munshi's case, 13 Cal WN 108, though it may, undoubtedly, involve the other question, left open by us in this reference. Similar remarks apply to the latter case, reported in the same volume, namely, Satish Chandra Basu v. Nit-tya Gopal, 21 Cal WN 978: (AIR 1918 Cal 699) which purported to follow Fani Bhusan's case, 21 Cal WN 976: (AIR 1917 Cal 465),
23. Clearly, then, none of the decided cases would lend any real support to Aminuddin Munshi's case, 13 Cal WN 108.
24. On the other hand, the decision in the said case, 13 Cal WN 108, has been rightly criticised in 17 Cal WN 817, 20 Cal WN 872: (AIR 1916 Cal 883(1)), and 21 Cal WN 373: (AIR 1917 Cal 791), and (he court's refusal to extend the theory of the landlord's (decree-holder's) constructive dispossession to the case of a third party auction-purchaser (vide Rudra Narain Maity v. Natabar Jana, 18 Cal LJ 89; Krishna Chandra's case, 20 Cal WN 872: (AIR 1916 Cal 883(1)) (supra); 21 Cal WN 373: (AIR 1917 Cal 791) (supra), and 46 Ind Cas 975: (AIR 1918 Cal 207 (2)), is well justified on reasons, already given by us, and on the further reason that a special statutory provision, seeking to reduce or restrict the period of limitation, prescribed under the general law, should, in the absence, at least, of compelling circumstances, pointing to the contrary, be strictly construed. These decisions, therefore, deserve to be preferred to Aminuddin Munshi's case, 13 Cal WN 108, and its supposed principle, as set out and sought to be applied in Pitambar Mahapatra's case, 24 Ind Cas 860: (AIR 1914 Cal 654). I need only add that Fletcher, J., who delivered the judgment in 21 Cal W N 976: (AIR 1917 Cal 465), (supra), was himself a party to the decision in Ganesh Chandra's case, 46 Ind Cas 975: (AIR 1918 Cal 207(2)) (supra).
25. I, accordingly, agree that this Reference should be answered, as suggested by my Lord, and I concur in the order, proposed by him.