1. These two appeals are by the plaintiffs and arise out of two suits for declaration of the plaintiffs' title in and recovery of possession of certain lands. The lands in suit were claimed by the plaintiffs as reversionary heirs of one Krishna Nath Saha, on the allegation that their title had accrued on the death of Krishna Nath Saha's widow Mukta Sundari. The defences raised were different in respect of different portions of the lands in suit, but it is not necessary at the present stage to set forth the various allegations in the written statements in detail. In respect of the cultivated lands, the only question which has been submitted to this Court for decision is whether the Courts below were right in holding that the plaintiffs' suit is barred by the special rule of limitation contained in Article 3, Schedule 3, Ben. Ten. Act, while in respect of the homestead portions of the lands in suit, the only question for decision is whether the Courts below were right in holding that the sale of this portion of the land by Mukta Sundari to defendants 4 and 5 of Suit No. 1144 was for legal necessity. The plaintiffs' title as Krishna's reversioners has been found by both Courts; but both Courts have nevertheless dismissed the plaintiffs' suits for the reasons indicated above namely that the plaintiffs' suit in respect of the cultivated lands was barred by the special rule of limitation, and that as regards the homestead lands, defendants 4 and 5 had acquired a valid title by their purchase from Mukta Sundari.
2. As regards the homestead lands there is little to be said; the findings of the Courts below are conclusive on the point. It is true that as has been pointed out on behalf of the appellants the consent of a reversioner ought not to be inferred merely from the fact that he was present when the sale-deed was executed still less that his consent, even if so inferred, was of such a kind as to bind him and the other reversioners. It is however clear that the presence of one of the reversioners at the time when the sale-deed was executed, was merely one of the circumstances that was taken into consideration by the Courts below in arriving at their findings that the sale had been made for legal necessity and was therefore binding on the reversioners. It has also been pointed out that no issue was framed with regard to this question of legal necessity, but it appears that legal necessity was alleged in the written statements, and that the question of the existence or non-existence of legal necessity was fully considered by the Courts below: in these circumstances the absence of an issue on the point is immaterial. The result is that so far as this portion of the case is concerned, the appeal must fail.
3. As regards the cultivated lands, it was alleged in the plaint and sought to be established by evidence, that the plaintiffs had entered into possession after Mukta Sundari's death, but had subsequently been dispossessed by the present defendants. Both the Courts below have however negatived this contention, and have held that the plaintiffs were never in possession after Mukta Sundari's death. The defence, on the other hand, contended that Mukta Sundari had acquired an absolute right in the lands in suit by virtue of a gift said to have been made to her by her husband: this contention has however been negatived by both the Courts below, and both Courts have held that Mukhta Sundari's surrender of the lands to the landlords was not binding upon the plaintiffs, that the latter being Krishna's reversionary heirs. Both the Courts below have found that some time after her husband's death, Mukta Sundari surrendered the cultivated portion of her husband's lands to the landlords, and that the landlords, after maintaining direct possession for some time through Bargadars, settled the lands with the defendants. These concurrent findings cannot be and have not been challenged before this Court, but it has been contended on behalf of the appellants that the facts referred to above do not amount to dispossession of the plaintiffs by the landlords, more especially in view of the fact that the defendants in their written statements alleged that the plaintiffs were never in possession of the lands in suit after Mukta Sundari's death, and that both the Courts below have upheld this contention and have recorded a clear finding to that effect. The real meaning of this finding appears however to be that the plaintiffs never actually cultivated the lands in suit after Mukta Sundari's death and never realised any share of the crops from the Bargadars in possession.
4. In view of the fact that the plaintiffs' right to possess the lands accrued from the date of Mukta Sundari's death, the finding in question does not, in my opinion, affect the question of the applicability of the special rule of limitation. For the purposes of that rule the plaintiffs ought, in my opinion, to be regarded as having been in constructive possession of the lands in suit from the date of Mukta Sundari's death, and in this view of the matter it is clear that the action of the landlords in settling the lands in suit with other tenants amounted to dispossession within the meaning of Article 3, Schedule 3, Ben. Ten. Act. I have the less hesitation in coming to this conclusion in view of the fact that the case set up by the plaintiffs was one of possession and dispossession after Mukta Sundari's death, and I agree with the learned Advocate for the respondents in respect of his contention that it is not open to the plaintiffs now to turn round and take their stand on the finding of the Courts below to the effect that the plaintiffs were never in possession after Mukta Sundari's death. My attention has been drawn to a decision of this Court in the case of Srish Chandra Bhaduri v. Brojobashi Pramanik : AIR1929Cal157 in which a contrary view appears to have been taken in circumstances somewhat similar to those of the present case. That case may however be distinguished on the ground, that, so far as it appears from the judgment, the plea of special limitation was raised for the first time in this Court, and that, in that case, the defendants were the appellants-the suit in connexion with which the appeal was preferred having been decreed by both the Courts below. Moreover there is nothing in the judgment in that case to suggest that the plaintiffs' suit was based on an allegation of possession and dispossession after the plaintiffs' right to possession had accrued as in the present case. In these circumstances I do not regard this decision as binding on me so far as the present case is concerned. In my opinion the Courts below were right in holding that the special rule of limitation applies to the present case and it is conceded that if that rule applies, the plaintiffs' suit in respect of the cultivated lands must be held to be time barred. The result is that both these appeals are dismissed with costs and the judgment and decree of the lower appellate Court are affirmed. Leave to appeal Under Section 15, Letters Patent has been asked for and refused.