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Smt. Khatun Jinnat Sahebani W/O RehanuddIn Patari and anr. Vs. Isha Prokash Gangooli and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtKolkata
Decided On
Reported inAIR1944Cal44
AppellantSmt. Khatun Jinnat Sahebani W/O RehanuddIn Patari and anr.
Respondentisha Prokash Gangooli and ors.
Cases ReferredBrojo Kishore Mahapatra v. Saraswati Dassi
Excerpt:
- .....3, bengal tenancy act. this article prescribes a special limitation of 2 years from the date of dispossession and this suit had been brought more than 2 years after that date. as regards the earlier purchase by plaintiff 1, the munsif held that since the transfer had not been recognised by the landlords defendants 1 to 3, the relationship between the parties at the date of dispossession was not that of tenant and landlord; therefore, dispossession in respect of this share of the holding was not by the plaintiffs' landlord and so the special limitation did not apply, the ordinary limitation of 12 years being applicable. accordingly he decreed this part of plaintiff l's claim.3. in appeal the subordinate judge took the view that the claims in respect of both the purchases were barred by.....
Judgment:

Rau, J.

1. This appeal is by the plaintiffs in a suit brought by them for recovery of possession of a raiyati holding. The holding originally belonged, to one Ana Mia, who held it, as. to 12 annas, under defendants 1 to 3, and as to the remaining 4 annas, under defendant 17. After Ana Mia's death, by successive devolutions, 7 annas odd of the raiyati interest passed to defendant 11 and 4 gundas odd to defendant 9. On 19th May 1922, plaintiff 1 purchased the interest of defendant 11. This was before raiyati holdings were transferable under the Bengal Tenancy (Amendment) Act of 1928. Then, on 25th January 1930-after the aforesaid Act-plaintiffs 1 and 2 purchased the interest of defendant 9. Under the raiyati holding, plaintiff 2 and one Aminulla had the entire under-raiyati interest, and they were in possession through certain bargadars who had executed kabuliyats in their favour. In 1931, defendants 1 to 3 brought a rent suit against defendants 4 to 14 (making defendant 17 a pro forma defendant) on the footing that they were the entire body of raiyats. On 29th July 1931, they obtained a decree against defendants 4 to 14, and on 10th February 1932, they purchased the holding in execution. On 30th July 1933, they served a notice under section 167, Bengal Tenancy Act, on Aminulla for annulling the under-raiyati interest. On 25th July 1934, they got a decree for ejectment against Aminulla and some of the bargadars. On 12th May 1935, they took possession of the land through the Court and took kabuliyats from some of the bargadars who were in possession. On 26th July 1937, the plaintiffs brought the present suit for a declaration that their interests were not affected by the proceedings in the rent suit and for recovery of possession.

2. The Munsif who tried the suit found (1) that defendants 1 to 3 were bound to recognise plaintiffs 1 and 2 as their tenants having been duly notified of the purchase of 1930; (2) that as these plaintiffs were left out of the rent suit, the decree of 1931 obtained by defendants 1 to 3 was merely a money decree; (3) that the sale in execution of the decree passed only the g right, title and- interest of the defendants in the rent suit; (4) that the rights of the plaintiffs under the purchases of 1922 and 1930 were accordingly unaffected by the sale. But he took, the view that as regards the second of the two purchases, the plaintiffs' claim to recovery of possession was barred by Article 3 of Scheduled 3, Bengal Tenancy Act. This article prescribes a special limitation of 2 years from the date of dispossession and this suit had been brought more than 2 years after that date. As regards the earlier purchase by plaintiff 1, the Munsif held that since the transfer had not been recognised by the landlords defendants 1 to 3, the relationship between the parties at the date of dispossession was not that of tenant and landlord; therefore, dispossession in respect of this share of the holding was not by the plaintiffs' landlord and so the special limitation did not apply, the ordinary limitation of 12 years being applicable. Accordingly he decreed this part of plaintiff l's claim.

3. In appeal the Subordinate Judge took the view that the claims in respect of both the purchases were barred by limitation. He considered that as the plaintiffs were tenants of defendants 1 to 3 by their purchase of 1930, they were in the position of tenants at the time they were dispossessed of the holding, the same persons could not, he said, be treated as tenants in respect of one share of the holding and trespassers in respect of another. Dispossession in respect of both shares was thus by the landlords and the special limitation prescribed by Article 3 of Scheduled 3, Bengal Tenancy Act, applied. The crucial question in the ease is this question of limitation. According to both the Courts below, the dispossession took place in May 1935 (Baisakh 1342 B.S.) and the present suit was brought in July 1937.

4. Article 3 of Scheduled 3, Bengal Tenancy Act, is in the following terms:

________________________________________________________________

Description of suit. |Period of |Time from

|limitation. |which period

| | begins to run.

____________________________|__________________|________________

3. To recover possession of |Two years. |The date of dis-

land claimed by | |possession.

the plaintiff as a | |

raiyat or under-rai- | |

yat. | |

| |

_________________________________________________________________

5. The argument on behalf of the appellants is that dispossession here means dispossession by the landlord as landlord and that dispossession by the landlord through the machinery of the Court, as in the present case, is outside the scope of the Article This contention applies to both the purchases. A further argument advanced is that as regards the purchase of 1922, the dispossession was not by the plaintiffs' landlord at all, as the purchase had not been recognised by defendants 1 to 3. The case law on this subject has not been uniform. All the cases in this Court up to 1927 have been considered in the judgment of a Special Bench of the Patna High Court in Gajadhar Rai v. Ramcharan Gope ('30) 17 A.I.R. 1930 Pat. 256 . and it has been pointed out there that from 1897 to 1913 the current of decision was one way, while the tendency since 1914 has been the other way. The earlier decisions held that dispossession by the landlord through the intervention of the Court was outside the article, while the later tendency has been to hold that it is within the Article Since the aforesaid judgment, there have been at least three more cases in this Court: Gostabehari v. Amiya Kumar 40 C. W. N. 135, following the earlier line; Sheikh Alam v. Atul Chandra Boy : AIR1936Cal299 , and Shashi Kanta v. Nayjan Bewa : AIR1942Cal611 , following the later line. In this state of the authorities we might have felt constrained to refer the matter to a Full Bench, but for the circumstances that section 48 E, Ben. Ten. Act, which was inserted in 1928 and amended in 1938, throws new light on the subject. We must remember that the words in col. 3 of Article 3 of Schedule 3 are merely 'The date of dispossession.' The words ' by the landlord ' have been read into the article, because of the limitation imposed upon the provisions of the article by the preamble to the Act, which says that the Act is intended to amend and consolidate certain enactments relating to the law of landlord and tenant, Brojo Kishore Mahapatra v. Saraswati Dassi (02) 6 C.W.N. 333. Accepting this limitation as necessary, let us see how much it implies. It is here that the new Section 48E comes to our aid. The section as amended in 1938 runs:

When a landlord has ejected an under-raiyat on the grounds specified in Clause (c) or Clause (d) of Section 48C, the under-raiyat may apply to the Court by which the decree for ejectment was passed to be put in possession of the holding from which he was ejected by way of restitution if, within four years of the ejectment, the landlord sublets the holding or any portion thereof; and thereupon the Court may, if satisfied after inquiry that the landlord did not use the land for his homestead, or for cultivation by himself or by hired servants or by members of his family or with the aid of partners, Order a recovery of possession on such terms, if any, with respect to compensation to the persons injured as to the Court may seem just.

Let us note the opening words 'when a land- lord has ejected.' But section 89 says 'No tenant shall be ejected from his tenure or holding except in execution of a decree.' Clearly then, the Act regards the landlord as ejecting the tenant even when he does so by process of Court, as he has to; otherwise the opening words of section 48E would be meaningless. If so, we may legitimately regard the landlord as dispossessing the tenant even when he does so by the machinery of the Courts. In this respect the new provision may be said to have affirmed the tendency of the later, rather than the earlier decisions of this Court. There is another point on which the new Section throws some light. Suppose, a landlord, having ejected undertenant A, sublets the holding to B within four years of the ejectment. The section says that in these circumstances, A may recover possession. Now at the time A applies to Court for restitution he is not the tenant of the landlord: B is the tenant. Nor was A the tenant even at the date of the ejectment, for the ejectment was on the ground that the tenancy had already terminated by efflux of time (Section 48C (c)) or already been terminated by notice (Section 48C (d)). What can be said is that the landlord is the landlord of the holding of which A seeks possession. If such is the position with respect to a provision in the body of the Act, there is no longer any warrant for the assumption that the dispossession contemplated in Article 3 of Schedule 3 is dispossession by a person who was the plaintiff's landlord at the date of the dispossession; it should be sufficient if the dispossession was by the landlord of the holding of which the plaintiff seeks to recover possession.

6. The difficulties on this subject have really been created by case law. Case law, having first inserted the rather vague words 'by the landlord' in col. 3 of Article 3 as being required by the scheme of the Act, then proceeded to interpret the words and sometimes interpreted them with a strictness not warranted by anything contained in the Act. Hence the rule, sometimes followed and (sometimes not, that dispossession must be jnot only by the landlord but by the landlord qua landlord. We venture to think that at least some of the difficulties may be avoid-ed by a more precise formulation of the words which the scheme of the Act can be said to require in Article 3. We would suggest that the most the scheme of the Act requires is that we should read the entry in col. 3 of Article 8 as if it ran, ' The date of dispossession, provided that the dispossession was by a person who at that date was a landlord of the holding to which the land is claimed by the plaintiff to appertain, irrespective of whether the dispossession was effected directly or through the instrumentality of a Court or otherwise.

7. Let us now apply these considerations to the case before us. Here, at the date of the dispossession, defendants 1 to 3 were undoubtedly landlords (along with defendant 17) of the holding of which the plaintiffs claim a share. Further, the dispossession was by these landlords, albeit by the machinery of the Court. Therefore, Article 3 applies and the suit is barred by limitation, whether in respect of the share purchased by plaintiff l in 1922 or the share purchased by plaintiffs 1 and 2 in 1930. The appeal is accordingly dismissed. Each party will bear its own costs in this Court.

Biswas, J.

8. I agree.


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