Skip to content


Satish Chandra Bandopadhya and ors. Vs. Hasem Ali Kazi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal109
AppellantSatish Chandra Bandopadhya and ors.
RespondentHasem Ali Kazi and ors.
Cases ReferredRampal Singh v. Balbhaddar Singh
Excerpt:
- .....on appeal is what is the period of limitation which applies.4. the defendants contend that the dispossession was by the landlord and being more than two years before the date of suit, viz., december 25, 1915, the suit being brought on 25th july 1919, the suit is barred by limitation. they further contend on the strength of certain decisions that it is immaterial that the defendants wore also auction-purchasers. as the defendant had also the capacity of a landlord the dispossession must be considered to be by the landlord. they contend that if the plaintiffs were not bound by the decree in suit no. 961 they are still tenants of the defendants nos. 1 and 2 and hence the dispossession must be considered to be by the landlord. the sheet anchor of their argument is the casa of kedar nath.....
Judgment:

Cuming, J.

1. In the suit oat of which this appeal has arisen fch.3 plaintiffs who are the respondents in the present appeal sought to recover possession after declaration of title of certain plots of land in karsha interest. Their case was that they with others held a karsha interest in the land under Defendants Nos. 1 and 2. The Defendants Nos. 1 and 2 brought a rent suit and obtained a decree ex parte in a suit for rent No. 961 of 1914, and in execution of the decree pureha ed the property. The plaintiffs were made parties to the suit but they were minors and ware not properly represented. On November 14, 1917, the plaintiffs were fined for cutting away the paddy grown on the land on the ground that it had been grown by the Defendants Nos. 1 and 2 and after this Defendants No. 1 and 2 dispossessed plaintiffs and their co-sharers. Plaintiffs' casa is that not being properly represented in the Suit No961 of 1914 their interest did not pass. Plence this suit.

2. The case of the Defendants Nos. 1 and 2 was that the minors were properly represented and the suit was barred by the special limitation of Article 3, Schedule 3. Bengal Tenancy Act. The trial Court found that the minors were not properly represented in the Rant Suit No. 961 of 1914 and so their title did not pass by the sale. That Defendants Nos. 1 and 2 took symbolical possession on 25th December as purchasars at the auction sale and they actually dispossessed the plaintiffs some time before November 1916r that the special rule of limitation applied and so the suit was barred by limitation. The plaintiffs appealed to the District Court. That Court held that by taking delivery of possession on December 25 1915, the Defendants Nos. 1 and 2 dispossessed the plaintiffs, but that as they did this in their capacity of auction-purchaser's the special rule of limitation under Act. 3, Schedule 3 did not apply, and hence decreed the suit.

3. The question which has now been raised on appeal is what is the period of limitation which applies.

4. The defendants contend that the dispossession was by the landlord and being more than two years before the date of suit, viz., December 25, 1915, the suit being brought on 25th July 1919, the suit is barred by limitation. They further contend on the strength of certain decisions that it is immaterial that the defendants wore also auction-purchasers. As the defendant had also the capacity of a landlord the dispossession must be considered to be by the landlord. They contend that if the plaintiffs were not bound by the decree in Suit No. 961 they are still tenants of the Defendants Nos. 1 and 2 and hence the dispossession must be considered to be by the landlord. The sheet anchor of their argument is the casa of Kedar Nath Biswas v. Kaimni Sundayi Dassya : AIR1924Cal623 , a decision to which one of us was a party. The plaintiffs, on the other hand, contend that the dual capacity of landlord and auction-purchaser must be kept distinct. That the dispossession was by the landlord in his capacity of auction-purchaser and hence the special rule of limitation provided by Article 3, Schedule 3, has no application and the ordinary 12 years' rule applies. Their sheet anchor is the cases of Hay an Chandra Barai v. Hayi Char an Barai [1921] 25 C.W.N. 102 and Ram Kinkar Tewari v. Sthiti Ram Panja [1918] C.L.J. 528. Now the first point to be decided is when were the plaintiffs actually dispossessed and by, whom and in what capacity.

5. The lower appellate Court finds that the plaintiffs were dispossessed by the Defendants Nos. 1 and 2 as auction-purchasers on 25th. December 1915, when the auction-purchaser took possession through the Court. It is not specifically stated that there was then any actual ouster or finding that there was actual dispossession, that is to say, the eviction of the plaintiffs from the land.

6. The trial Court finds that there was actual ouster some time before November 2,1916, by Defendants Nos. 1 and 2. He does not find in what capacity the actual ouster was.

7. The lower appellate Court finds that possession was taken through the Court on the 25th December 1915, by Defendants Nos. 1 and 2 as auction-purchaser. Between this date and November 2 1916, the actual ouster took place.

8. If the possession through the Court on 25th December 1915 was l ken in the capacity of auction-purchaser it is reasonable to hold that any further action taken by Defendants Nos. 1 and 2 was in their capacity as auction-purchasers, for obviously they would have no possible semblance of legality to take possession in any other capacity and there is no reason to think that they changed the capacity. Hence we must take it that some time before November 2, 1916, the defendants as auction-purchasers took possession and ousted the plaintiffs. The point then arises whether if the Defendants Nos. 1 and 2 who were also the landlords of the plaintiffs dispossessed them in their capacity as auction-purchasers what period of limitation applies. If Article 3, Schedule 3 applies then clearly the plaintiffs' suit is time-barred. If not it is not time-barred.

9. The defendants contend that it does. They rely on the case of Kedar Nath Biswas v. Kamini Sundari Dassya : AIR1924Cal623 .

10. In that case there was a certain holding held by two brothers Sitanath and Dwarika. Sitanath died leaving the plaintiff in the suit his widow, as his heir. Defendants Nos. 1 and 2 in that case were the landlords. They brought a suit for rent, obtained a decree and sold the property and puchased it themselves.

11. The rent suit was brought not against the plaintiff but against the auction-purchaser, Defendant No. 4.

12. It was held that this was a fraudulent decree. The Defendants Nos. 1 and 2 dispossessed plaintiff in virtue of delivery of possession to Defendants Nos. 1 and 2 in execution of the rent-decree.

13. The learned Judges held that as the Defendants Nos. 1 and 2 were at the time of dispossessing the plaintiff still her landlord, Article 3 of Schedule Ill applied. The learned Judges held that Article 3 applies to a case where dispossession has been by a person who at the time of the dispossession, in whatever way the dispossession might take place either through, a civil wrong or by means of criminal force, occupies the position of a landlord or possesses the character of a landlord and had the capacity of a landlord; the dispossession must be taken to have been effected by the landlord.

14. The respondent relies on the case of Ram Kinkar Tewari v. Sthiti Ram Panja [1918] 27 C.L.J. 528. In that case the landlord obtained a decree for rent against one Khetra Nafch Tewari. The judgment-debtor died leaving three infant sons. Then the decree-holder applied for execution, sold the property and bought it himself.

15. The uncle of the minors applied to set aside the sale. The District Judge found that as the infant a had not come within two years their title had been extinguished fund Article 3, Schedule 3, and he refused to cancel the same.

16. Mukerji, J., held that Article 3, Schedule 3, had no application because when a landlord in execution of a decree for rent puts the holding to sale and purchases it himself and obtains delivery of possession through the Court such dispossession of the tenant is not dispossession within the meaning of Article 3, Schedule 3. The same view is taken in the case of Kamal Dhari Thakur v. Barnes war Singh Bahadur [1913] 17 C.W.N. 817, with reference to page 818, left hand column. See also the case of Brojo Rishore Mahapatra v. Saraswati Dassi [1901] 6 C.W.N. 333, with special reference to the remark of Banerji, J., at page 335.

17. The learned Judge remarks:

I would, however, observe, that if the article, applies, as I think it does, only to suits as between landlord and tenant it would not be right to hold that it is applicable to a suit where the dispossession is by the defendant acting, not as landlord, but expressly, in a different capacity, viz., that of auction-purchaser of the right, title and interest or a tenant at a sale held in execution of a rent-decree obtained by him as a co-sharer landlord.

18. The learned Judge followed the case of Abhoy Charn Mookerjee v. Sheik Titu [1897] 2 C.W.N. 175, where it was held that the special limitation of Article 3. Schedule 3, Bengal Tenancy Act, did not apply where a tenant is dispossessed from the holding by his landlord not as a landlord but as a representative of the person whose right, title and interest he has purchased. We have clearly, therefore, conflicting decisions. The case of Kedar Nath Biswas v. Kamini Sundari Dassya : AIR1924Cal623 is an authority for the proposition that if the relationship of landlord and tenant exists between the parties at the time of dispossession it is immaterial in what capacity the landlord took possession. The dispossession is to be considered as being by the landlord as such and Article 3, Schedule 3, applies.

19. The other cases hold that the deciding factor is in what capacity the dispossesion is effected, and if the dispossession is by the landlord in his capacity as auction-purchaser or any other capacity except a landlord Article 3, Schedule 3, doe3 not apply. The question, therefore, requires to be considered by the Full Bench. My learned brother, however, is of opinion that the facts as found would not justify a reference to a Full Bench and I, therefore, proceed to decide the appeal. Speaking for myself and with great respect to the learned Judges who have held otherwise I think the case of Kedar Nath Biswas v. Kamini Sundari Dassya : AIR1924Cal623 was wrongly decided. The article in question is found in the Bengal Tenacy Act, an Act which deals with relations between landlords and tenants and defines their respective rights. As the learned Chief Justice (Jenkins, C.J.) remarked in Rudra Narain v. Natabar Jana [1914] 41 Cal. 52:

We recently had occasion to enter a protest against extending the terms of the Article by the use of any figure of speech or metaphor.

20. See also the remarks of the same learned Judge in the case of Basanta Kumari v. Nanda Ram [1913] 17 C.W.N. 1149. Speaking for myself, it seems to me that a special law of limitation, which largely curtails the ordinary rights of the subject by reducing the period of limitation within which he can come to enforce his rights from 12 to 2 years, requires to be most strictly construed and my own opinion is that the article can only apply when the landlord dispossessed his tenant in the capacity of landlord. When he dispossesses in any other capacity it is not a question between landlord and tenant but between the person on the land and the auction-purchaser.

21. In the present case it has been found that the dispossession was by the landlord in his capacity of auction-purchaser and in that view of the ease I think the ordinary twelve years' rule applies. The finding of the lower appellate Court is right and I would, therefore, dismiss the appeal.

22. The result is that the appeal stands dismissed with costs.

Page, J.

23. I regret that I cannot take the view of this case that has found favour with my learned brother Cuming. The following salient facts were either found by the lower Courts or admitted by the parties.

24. At all material times prior to the institution of the present suit the relationship of landlord and tenant existed between the parties, the plaintiffs-respondents with their co-sharors, the pro forma Defendants Nos. 3 and 4, holding the lands in dispute as karsha tenants of the appellants, the Defendants Nos. 1 and 2. On the 30th May 1914 the defendants Nos. 1 and 2 brought a suit for arrears of rent against all the co-sharer tenants, and on the 10th November, 1914, obtained an ex-parte decree against the plaintiffs and Defendants Nos. 3 and 4. When the rent suit was instituted, however, the plaintiffs were minors, and not being duly represented in the suit the decree was not binding union them, and as against the plaintiffs the proceedings were wholly null and void. On the 25th December 1915, in execution of the said decree the Defendants Nos. 1 and 2 obtained through the Court symbolical possession of the lands in suit which up till that date admittedly had been in the possession of the plaintiffs and their co-sharers.

25. It is common ground that the plaintiffs have been in possession of the lands within 12 years prior to the present proceeding, and the trial Court found that at the date when the plaintiffs filed the present suit the Defendants Nos. 1 and 2 were in possession through their tenants the Defendants Nos. 5 to 7, who are in actual possession of the lands. The lower Courts, however, are not in agreement as to the date upon which the Defendants Nos. 1 and 2 dispossessed the plaintiffs; the trial Court holding that the

plaintiffs were dispossessed by the landlords some time before the disposal of the criminal case viz., some time before 2nd November 1916;

26. The lower appellate Court, on the other hand, being of opinion that

there is absolutely no room for doubt that the defendants have dispossessed the plaintiffs by the delivery of possession on 25th December 1915.

27. As I apprehend the matter, however, it is immaterial which date is taken; for, in my opinion, in either event the plaintiffs' suit must fail.

28. Now, if the only form of possession which the defendants obtained was that which they received when symbolical possession of the lands in suit was given to them by the Court on 25th December 1915, the defendants cannot be held to have dispossessed the plaintiffs; for, as against the plaintiffs who were not duly impleaded and were not bound by the proceedings in the rent suit, symbolical possession is no possession at all : Juggobundhu Muherjee v. Ram Chunder Bysack [1880] 5 Cal. 584; Runjit Singh v. Bunwari Lal Sahu [1884] 10 Cal. 993; Juggobundhu Mitter v. Pumanand Gossami [1889] 16 Cal. 530; Radha Krishna Chanderji v. Ram Bahadur : (1918)20BOMLR502 ; and Peary Mohan Mukherjee v. Arunodoy Ghose [1920] 25 C.W.N. 168. Inasmuch, therefore, as upon that hypothesis the Defendants Nos. 1 and 2 cannot be regarded as having dispossessed the plaintiffs, the plaintiffs' claim to-recover possession against Defendants Nos. 1 and 2 must fail. It is further to be observed that as against Defendants Nos. 5-7 who, as the trial Court held, are in actual possesssion, no relief was claimed in the plaint, and the trial Court rejected an application by the plaintiffs to amend the plaint by adding a prayer for suitable relief against these defendants. On the other hand, if it is open to this Court, having regard to the decision of the lower appellate Court upon the question whether actual dispossession was effected, to accept and proceed upon the finding of fact by the trial Court that the plaintiffs were actually dispossessed by the landlords, the Defendants Nos. 1 and 2, some time before the 2nd November 1916, I am of opinion, that the plaintiffs' suit which was brought on 25th July 1919, is barred by Schedule 3, Article 3 of the Bengal Tenancy Act (Act 8 of 1889, as amended).

29. Article 3 provides that a suit to recover possession of land claimed by the plaintiff as a raiyat or under-raiyat must be brought within two years from the date of dispossession. Now, the terms of Article 3 are unrestricted, and are wide enough to include suits brought by raiyats or under-raiyats to recover possession of land from any person who has dispossessed them whoever he may be. Having regard to the preamble of the Act, however, and the intention of the Legislature to be collected from the terms of the enactment, it is now well settled that the term 'dispossession' as used in Article 3 means 'dispossession by the landlord.' Rudra Narain v. Natabar Jana [1914] 41 Cal. 52. It follows, therefore, that a suit to recover possession of land after dispossession will not lie within the ambit of Schedule 3, Article 3, unless (1) the plaintiff is a raiyat or under-raiyat, (2) the dispossession is by his landlord and (3), the suit is brought within two years from the date of dispossession. In the present case, however, each of these conditions is fulfilled, and, in my opinion, the suit is barred by limitation. The present suit appears to me to be indistinguishable from, and governed by, Kedar Nath Biswas v. Kamini Sundari Dassya : AIR1924Cal623 . I was a party to the decision in that case, and I adhere to the opinion that I then expressed. I confess that I am at a loss to understand what difference it could make, either in that case or in the present on, that the landlord had obtained delivery of possession through the Court in execution of a decree by which the plaintiffs were not bound, and which as against them was a nullity and in no way affected the relationship of landlord and tenant that at all material times subsisted between the plaintiffs who were dispossessed and the defendants who dispossessed them.

30. I should have been prepared in the circumstances to let the matter rest there, and not to embark upon a consideration of the further question as to whether the capacity in which the landlord purported to dispossess the tenant affects, the applicability of Schedule 3. Article 3 or in other words, whether the plaintiffs must have been dispossessed by the landlords as such for the trial Court found as a fact that the plaintiffs were actually dispossessed by the landlords some time before 2nd November 1916 and there is no finding by either Court that such dispossession was by the Defendants Nos. 1 and 2 in their capacity of auction-purchasers. My learned brother, however, upon the hypothesis that the Defendants Nos. 1 and 2 when they actually dispossessed the plaintiffs in or about 2nd November 1916, were acting in the capacity or auction-purchasers and not of landlords, is of opinion, that Schedule 3, Article 3, does not apply to the present suit, and in these circumstances I feel that I ought to express my own opinion on the matter. No doubt, there is authority to support the view which has commended itself to Cuming, J. : see Abhoy Charan Mukerjee v. Sheikh Titu [1897] 2 C.W.N. 175, Brojo Kishore Mahapatra v. Saraswati Dassi [1901] 6 C.W.N. 333, Mahomed Khalil v. Hirendra Nath Bhattacharya [1907] 5 C.L.J. 65, Kamal Dhari Thakur v. Rameshwar Singh Bahadur [1913] 2 17 C.W.N. 817 and Ram Kinkar Tewari v. Sthiti Ram Panja [1918] 27 C.L.J. 528.

31. The ratio decidendi of these cases appears to be that where a landlord has purchased the holding at an auction-sale held in execution of a decree and has obtained delivery of possession through the Court, he is given possession not as landlord, but as auction-purchaser. That, of course, is true. But if the tenants who were dispossessed in this manner were not parties to the proceedings the delivery of symbolical possession to the landlords through the Court will not affect their status or their rights. On the other hand, if the tenants were parties to such proceedings, and their landlords obtained a decree that was binding upon the tenants, and the landlords having purchased the property at an execution sale are given symbolical possession by the Court, such formal possession as against the tenants will operate as actual possession; and limitation will commence to run against the tenants from the date when such symbolical possession was obtained. Radha Krishna Chanderji v. Ram Bahadur [1918] 1 Cal. 993. But can it be said that in such circumstances that the tenants have not been dispossessed by their landlord? Undoubtedly, it was the Court that physically effected the dispossession, but who brought it about? If the landlords had not applied for the attachment and sale of the property would it have been sold? Clearly not. In my opinion the landlords cannot evade responsibility for the dispossession of their tenants merely he-cause they have resorted to the process of the Court as a mode of effecting the ouster. The Court will lean against the recognition of such a dual legal personality in the person who dispossess the tenant See per Stanley C.J., in Bhagwati v. Banwari Ltd. [1909] 31 All. 82.

32. Again, if it be urged that Schedule 3, Article 3 ought only to apply to suits in which the tenant has boon dispossessed by the landlord acting in the capacity of Landlord and when the landlord has effected the dispossession 'by taking the 5aw into his own hands and otherwise than in due course of law, Kamal Dhari Thakur v. Rameshwar Singh Bahadur [1913] 17 C.W.N. 817 because of the hardship which the tenant may suffer unless a narrow construction is placed upon Article 3, the answer is that no justification for such a restricted interpretation is to be found in the language in which Article is couched, and to read into the Article words which it does not contain upon grounds of expediency is to legislate and nod to administer the law. I can find no warrant for such a construction, and I agree with the view that Ghamier, C.J., expressed as to the meaning and effect of Schedule 3, Article 3. His Lordship observed that:

it is contended that the Article applies only when the raiyat has been dispossessed by his landlord acting as such. In fact the argument went to the length that the Article applies only when the landlord say either expressly or impliedly to the raiyat I am your landlord, you are my tenant. You must vacate the land and than turn the raiyat out wrongfully.... I am not prepared to place such a narrow construction on Article 3. It appears to me that if it is shown that the plaintiff raiyat is in fact a tenant of the defendant who dispossessed him, in respect of the land claimed in the suit, then Article B applies to the suit. The object of that Article seems to be to provide a short period of limitation fore suit by a raiyat to recover a holding from which ha has been dispossessed by his landlord. The reason or excuse, good, bad, or indifferent, given or supposed to have been given by the landlord for dispossessing his tenant appears to have no bearing on the enactment and much confusion must ensue if the applicability of the enactment is made to depend upon such considerations.

33. Kunti Dai v. Jharn Lal Das [1909] 31 All. 82 : Aminud-din Munshi v. Ulfat-un-nissa Bibi [1909] 13 C.W.N. 108, Fani Bhusan Sarkar v. Pulin Chandra Mandal [1916] 21 C.W.N. 976, Satin Chandra Basu v. Nittya Gopal Haldar [1918] 21 C.W.N. 978, Pitamber Mahapatra v. Bkagabat Lal [1914] 24 I.C. 860, Nabin Chandra Shaha v. Wajid [1920] 31 C.L.J. 199. Kedar Nath Biswas's case : AIR1924Cal623 .

In this suit the plaintiffs' substantial claim is to recover khas possession of the land, and the claim for a declaration of title to the land is merely ancillary to the claim for possession which I hold to he barred by limitation. In my opinion, the Court in the exercise of its discretion ought not in these circumstances the grant the plaintiffs a declaration of their title to the property : Sree Narain Mitter v. Sreemutty Kishen Soondari Dassee I.A. Sup. Vol. 149, Strimathoo Moothoo Vijia Rangoonadah Ranee Kalndapuree Natchiar v. Dorasinga Tevar [1838] 2 I.A. 169, Rampal Singh v. Balbhaddar Singh [1903] 25 All. 1. I would allow the appeal, and dismiss the plaintiffs' suit with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //