1. The plaintiff in the suit cut of which this appeal arises sought to recover possession of 6/7th share of a certain holding, which was sold in execution of a decree for arrears of rent obtained by the landlord defendant No. 1, Raja Peary Mohan Mukherjee, against the recorded tenant and was purchased by the defendant No. 1 on the 12th June 1802.
2. The suit was directed against the defendant No. 1 as the principal defendant and certain other persons defendants Nos. 2 to 32, who are described as pro forma defendant. It was alleged that the defendant No, 1 bad dispossessed the plaintiff at the time of obtaining symbolical possession. The suit was dismissed by the Court of first instance. On appeal that decision was reversed by the lower Appellate Court, and the defendant No. 1 appeals to this Court.
3. The case was referred to a Full Bench by Fletcher and Walmsley, JJ. The question before the Full Bench was whether the special rule of limitation contained in Article 3 of Schedule III to the Bengal Tenancy Act was applicable to a case where the dispossession was effected by the landlord as auction-purchaser of a holding and not as a landlord acting as such.
4. At the bearing of the ease before the Full Bench, it was pointed out that as a matter of fast the defendant No. 1 continued receiving rent for the holding for six months after his auction purchase at the rent sale and that the defendant No. 1 in March 1903 dispossessed the plaintiff by inducting other tenants on the land. The Full Bench accordingly was of opinion that if such dispossession of the plaintiff was to be considered as dispossession effected by the appellant, it was effected by him in his capacity as landlord and that the question referred to the Full Bench did not arise. The case was then referred bask to the Division Bench to be further dealt with and we have accordingly heard the Pleaders.
5. It must now be taken that the dispossession of the plaintiff was by the defendant No. 1 landlord, acting as such, and not as an auction-purchaser.
6. In the plaint it was distinctly stated that it was the defendant No. 1 who dispossessed the plaintiff and, as stated above, the suit was directed against the defendant No. 1 alone as the principal defendant. Upon the face of the plaint, therefore, the suit would be barred by the special rule of limitation.
7. It is contended, however, on behalf of the respondent that although there was an allegation that the dispossession was effected by the defendant No. 1, it was made on the footing that the dispossession took plane at the date of delivery of symbolical possession and that now, it having been found that the dispossession was subsequently effected by the other defendants, the plaintiff should be allowed to proceed against those defendants only, leaving out the landlord defendant No. 1 who was an unnecessary party to the suit.
8. But, in the first place, the suit has proceeded up to now against the defendant No. 1 as the person who has dispossessed the plaintiff. In the body of the plaint, it is stated that it was he who bad dispossessed the plaintiff and the prayer portion shows that the only person against whom any relief was claimed was defend ant No. 1 with whom joint possession was claimed. No relief was claimed against the other defendants, who are described as pro forma defendants.
9. We have been asked to allow the plaintiff to amend the plaint, so that the defendant No. 1 may be left out of the suit altogether and the suit may be so framed as to claim relief against the pro forma defendants alone.
10. We do not thick that this should be done at this stage. But apart from that we do not think that the defendant No. 1 is an unnecessary party to the suit. The dispossession effected by defendants Nos. 1 to 32 was at the instigation of, and in allusion with, defendant No. 1, the landlord who inducted the tenants on the land, The plaintiffs, therefore, were dispossessed by defendant No. 1 through the tenant?.
11. The decree of the lower Appellate Court is set aside, except in so far as it awards costs to defendant No. 25 which will stand, and the decree of the Court of first in stance restored with costs.
12. The plaintiff will pay costs of this appeal to defendant No. 1 appellant and also pay his (i.e. appellant's) costs, as also the costs of defendant No. 25 in the lower Appellate Court.
13. There will be no separate costs for the Full Bench reference.
14. This judgment will govern the other two appeals (Second Appeals Nos. 1225 and 1226 of 1917).