1. This is an appeal against a decision of the Subordinate. Judge of Mymensingh dated the 21st January 1898.
2. The suit was one for recovery of possession of a jote after establishing the plaintiff's right to the same. The plaintiff alleged that the jote belonged to his father, that, after his father's death, he lot it out in burga to one Feda Changa, and that the defendants had forcibly dispossessed his burgadar. The defendant No. 3 alone contested the suit; and he urged that the suit was barred by the two years' rule of limitation, and also by the twelve years rule of limitation, and that the plaintiff abandoned the jote on the death of his father.
3. The Courts below have held that the plea of abandonment has not been established. But the lower Appellate Court has found that the suit is not barred by the twelve years rule of limitation, and that the two years' rule has no application.
3. The defendant No. 3 appeals; and his contention is that the two years' rule of limitation, laid down in Article 3, of schedule III of the Bengal Tenancy Act, does apply as he is a fractional co-sharer landlord. He says that he owns a 2 1/2 karas share in the estate, in which the plaintiff holds the jote, and that, therefore, the plaintiff was bound to sue him within two years from the date of dispossession.
4. The learned Subordinated Judge on this point says: 'The two years rule has no application in this case. This is neither a case of dispossession by the landlord nor by the entire body of landlords.' This somewhat sphinx-like utterance has been the subject of much discussion before us. It appears to be capable of several interpretations. It may be interpreted as meaning that the plaintiff was not dispossessed by the sole landlord, or by the entire body of landlords, but by a fractional co-sharer landlord, or it may mean that the plaintiff was dispossessed by a person who is not a landlord at all. The former of these interpretations is favoured by the appellant, and the latter by the respondent; and in support of the interpretation which he favours the learned pleader for the respondent has referred to paragraph 2 of the defendant's written statement, in which the defendant states that he, having been a part malik of the said taluq, was holding some land as khamar and some as jote, and that, after partition, the land under claim having been included in the other malik's share, he continued in possessor of the diluted land in jote right under the said malik, by whom the plaintiff was dispossessed.this, it is said, means that when the plantiff was dispossessed, the defendant No. 3 had parted with his 2 1/2 karas interest in the land, and was holding the land in dispute only as a tenant under some of the other maliks. We are unable to feel certain as to which interpretation should be nut upon the Subordinate Judge's words ,and we must, therefore, remind the case to him for a clear finding as to whether the defendant, when he dispossessed the plaintiff, as we understand in has been found that he did, was a co sharer landlord, or had parted with his interest as a landlord in the land. If the finding of the learned Subordinate Judge be that the defendant No. 3 was a co-sharer landlord, then, think, there can be no doubt that the rule of limitation applicable two years, as laid down in Article 3 of schedule III of the Bengal enancy Act. The rulings of this Court are to the effect that, when landlord dispossesses his tenant, the two years' rule is applicable; and that would seem to us to apply to dispossession by a fractional landlord as well as to dispossession by the sole landlord or by the entire body of landlords. This, we think, has been already decided in the case of Joolmutty Bewa v. Kali Prasanna Roy (1890) I.L.R. 17 Cal. 926 decided by a Full Bench of this Court on the the of February 1894, which case, however, has not been report. But that case was one of dispossession by one of the co-sharer landlords; and it was held to be barred by the two years' rule of limitation, and although the Full Bench, to whom the case was referred, by a Division Bench of this Court did not deal with the question referred to them by the Division Bench, they dismissed the appeal, and there by Affirmed the finding of the District Judge who had dismissed the appeal before him as barred by the two years of limitation, the dispossession, as we have said, being by one of several landlords. We have no hesitation in following that ruling. But even if the question had not been already decided, that is the view we would take.
5. The pleader for the respondent urges that the plaintiff's jote is a non-occupancy holding. But we think that this point was never raised in the Court below. The case in the Court, below proceeded upon the assumption that the plaintiff's jote was an occupancy holding; and that we consider was what he pleaded it to be, because he said in his plant that it was an ancestral jote, which was never denied by the defends its.
6. In these circumstances we set aside the decree of th Lower Appellate Court and remand the case to the Subordinate Judge, to be disposed of in accordance with the above observations.
7. The costs will abide the result.