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Jogendranath Sen and ors. Vs. Behari Lal Das and ors. - Court Judgment

LegalCrystal Citation
Subject Tenancy
CourtKolkata
Decided On
Reported inAIR1930Cal450
AppellantJogendranath Sen and ors.
RespondentBehari Lal Das and ors.
Cases Referred and Nabin Chandra v. Wajid
Excerpt:
- .....not in a position to raise any question of transferabilityand lower down he observes:as regards special limitation i have already expressed the view that the possession of the defendants was not in the capacity of a cosharer landlord and there can consequently be no question of special limitation.2. babu brojolal on behalf of the appellants contended that the view of the additional district judge, in affirming the munsiff's judgment that in order to bring into play the special limitation as provided in the bengal tenancy act, it is necessary to establish that the defendants dispossessed the plaintiffs in the capacity of cosharer landlords is erroneous. now this theory of the landlord dispossessing a raiyat or an under raiyat as such, in order to bring the special law of limitation.....
Judgment:

B.B. Ghose, J.

1. These appeals are by the defendants 1 to 3 in the suits which have been decreed by the Additional District Judge affirming the decisions of the Munsiff. In all these suits the plaintiffs claimed as under-raiyats of a certain holding in a village called Chorekhali. The lands in all the suits comprise the C.S. plots 3, 4 and 5. The plaintiffs alleged that they were in possession of the lands through their bargadars and that in the month of Sravan 1327 B.S., one of the plaintiffs, Ramesh Chandra Das Gupta, in one of the suits raised a hut on plots 3 and 4, which led to the institution of proceedings under Section 145, Criminal P.C. between the plaintiffs and defendants 1 to 4 in which an order was made in favour of the defendants. The plaintiffs thereupon were prevented from going upon the lands and the suits were, therefore, brought for recovery of khas possession against the defendants. Defendant 4 did not put in appearance. Defendants 1 to 3 pleaded that the lands in question belonged to one Judisthir Nashkar and not to the person from whom the plaintiffs claimed to have purchased, that those defendants purchased the interest of Judisthir and had been in possession of the lands in question for a considerable number of years much beyond 12 years. Several issues were raised in the Court below and one of the issues was whether the suits were barred by special law of limitation under Article 3, Schedule 3, Ben. Ten. Act. Defendants 1 to 3 claimed to be cosharer landlords of mouza Chorekhali. In para. 15 of the written statement they stated that fact. In other paragraphs following (16 and 17) of the written statement, these defendants said that they were also the co-sharer landlords of the neighbouring mouza Bardiahat within which there was a mirash tenure and that their vendor Judisthir used to hold these lands under that mouzih. Both the Courts below have found that the lands are not within mouzah Bardiahat but within Chorekhali and that the persons from whom the plaintiffs professed to have derived their title were raiyats on the lands. Both the Courts have also found that the plaintiffs had proved that they were in possession within 12 years before the suits. It was mainly on all these findings that suits were decreed. Proceedings under Section 145, Criminal P.C. were started on 12th August 1920 and the final order of the Magistrate retaining the defendants in possession of the lands in suits was made on 14th April 1921. The suits out of which these appeals have arisen were instituted between 9th and 11th April 1923. The question that has been pressed before us on behalf of the appellants is that the plaintiffs' suits were barred by the special law of limitation under the Bengal Tenancy Act. The learned Additional District Judge rejected this contention of the defendants by the following observation:

The defendant-appellant claimed title to the land not as cosharer malik but as purchaser of a lease of Judisthir's holding and he is therefore not in a position to raise any question of transferability

and lower down he observes:

As regards special limitation I have already expressed the view that the possession of the defendants was not in the capacity of a cosharer landlord and there can consequently be no question of special limitation.

2. Babu Brojolal on behalf of the appellants contended that the view of the Additional District Judge, in affirming the Munsiff's judgment that in order to bring into play the special limitation as provided in the Bengal Tenancy Act, it is necessary to establish that the defendants dispossessed the plaintiffs in the capacity of cosharer landlords is erroneous. Now this theory of the landlord dispossessing a raiyat or an under raiyat as such, in order to bring the special law of limitation under the Bengal Tenancy Act into operation, is an exploded one. It is not necessary to refer to the long line of cases dealing with this point, as it is sufficient to draw the attention of the learned District Judge to the case of Satish Chandra Banerji v. Hasemali Kazi : AIR1927Cal488 , and many years previous to this Sir Lawrence Jenkins, took exception to the expression made in some of the cases about the dispossession by a landlord 'as such.' The view of the learned Additional District Judge being obviously erroneous, the question then arises whether the plaintiffs' suits were barred under the special law of limitation. In the view taken by the learned Additional District Judge that the rule of special limitation did not apply, he did not come to any finding on the question. The Munsiff also came to no finding on the special law of limitation, as he held this was not a case of dispossession by a landlord. He expressed his view in the following words:

Defendant 4 is a cosharer malik of Chorakhali. He has not entered appearance in this suit though duty summoned. He does not come forward and plead special limitation. Only defendants 1 to 3 have entered appearance. They are the de facto maliks of the Bardiahat. Defendant 4 is very likely their benamdiar. So I hold that the suits are not barred by special limitation.

3. It is contended by the learned advocate for the appellants that this finding means that defendant 4 was the benamidar of defendants 1 to 3 with regard to both the properties. On the other hand it is contended by the learned advocate for the respondents that the Munsiff meant that defendant 4 was a malik of Chorekhali, but he was the benamidar of defendants 1 to 3 with regard to the Bardiahat. With regard to this question I will make my observation later on.

4. The important question that we have to decide having regard to the fact that no finding has been arrived at by either of the Courts below as to the possession of the plaintiffs of the lands in dispute within two years of the suits, is whether such possession has been established or not. The learned advocate for the respondents asks for a remand but as these cases have been pending here from 1926, we think it advisable and in the interest of the parties to deal with the matter under Section 103, Civil P.C., upon the evidence, as the fact has not been determined by the lower appellate Court as to whether the plaintiffs were in possession within two years of the suits or not. On that account after the first day of hearing we allowed time to the learned advocate for the respondents to go through the evidence and place the evidence as regards this point. As I have already pointed out the final order in the case under Section 145, Criminal P.C., was made on 14th April 1921. There is no question that the plaintiffs were not in possession from that date and the suits having been brought within five days be-fore the expiry of two years from that date, the question of possession becomes very important. There is no direct evidence of possession on these five days, But it is contended on behalf of the plaintiffs-respondents that as the plaintiffs had paid rent to their landlords up to Pous 1327 B.S., that is, a few months before Chait 1327, possession of the plaintiffs should be presumed to continue till the end of Chait 1327 B.S., that is, within 13th or 14th April 1921.

5. Now the difficulty in the plaintiffs' way is the order of the Magistrate retaining the defendants in possession of the lands in dispute. As was observed by their Lordships of the Privy Council in the case of Dinomani Choudhurani v. Brojo Mohini Chaudhurani [1902] 29 Cal. 187, the order of the Magistrate is in the nature of a police order admissible as evidence of the fact as to who was declared entitled to retain possession; and these orders are admissible against all persons when the fact of possession on the date of the order has to be ascertained. But as between the parties to the proceedings one may go further and say that such an order is admissible as evidence as regards possession before two months of the date of the order, because if there had been a dispossession within two months of the date of the order when the proceedings were started, the Magistrate would have been bound to make over possession to the person who had been so dispossessed. In this case the proceedings were started on 12th August 1920 and it would require very strong evidence to show that although the order of the Magistrate was made retaining the defendants in possession on 14th April 1921, the meaning of which was that they were in possession on the date of the order first made, that is, 12th August 1920, still the plaintiffs were in possession up to April 1921. There is no evidence to that effect. On the other hand, one of the plaintiffs, Mahima Chandra Das, gives evidence that 'Go-hat is being held on our lands (disputed lands) since the last four years.' The go-hat was being held by the defendants and this plaintiff gave evidence on 15th May 1924. Therefore the dispossession by the defendants will be carried back to some time in 1920 and that would be quite in keeping with the order of the Magistrate passed in April 1921 op the preliminary order made in August 1920.

6. It is not necessary to deal with the evidence of the rest of the witnesses for the plaintiffs as regards the question of possession, because all of them say that the dispossession of the plaintiffs was on account of the order of the Magistrate. That can hardly be right. The rest of the witnesses who gave evidence of possession stated the dates of possession in a very vague way. The only tangible evidence is that one of their under-raiyats grew crops in 1326 B.S., and in Sravan 1327 on account of the building of a hut by the plaintiffs, the criminal proceedings were instituted. In this state of evidence it must be held that the plaintiffs have not succeeded in showing that their dispossession was within two years before the suits. This finding ought to put an end to the plaintiffs' case. But the learned advocate for the respondents, Mr. Sen, contends that as a matter of fact the defendants are not cosharer maliks, It is not contended that the special rule of limitation could net apply, if the defendants are the co-sharer landlords. This matter has been settled by a long series of cases. It is only necessary to refer to Annoda Sundari v. Kebulram [1903] 7 C.W.N. 542 and Nabin Chandra v. Wajid [1920] 31 C.L.J. 199. The first objection that the appellants' advocate raises is that this question was not open to the respondents to argue, because the Additional District Judge has taken it for granted that the defendant-appellants before him were cosharer landlords but they had not dispossessed the plaintiffs in their capacity as cosharers. This finding, he seemed to contend, concluded the plaintiff's case. On the other hand, the argument on behalf of the respondents amounted to this, that although the learned Additional District Judge took the fact for granted that the defendants were cosharer landlords, he did not come to any definite finding on the question, and that having regard to the rinding of the Munsiff, it is still open to him to argue that defendants 1 to 3 were not cosharer landlords of mouzah Chorekhali. We have allowed the plaintiffs to argue the matter having regard to the ambiguous findings of both the Courts below. The first question that must arise in this connexion is that the defendants pleaded in para. 15 of their written statement that they were cosharer landlords of Chorekhali, and upon that apparently, the issue as regards special limitation was raised. There is no evidence on behalf of the plaintiffs directly denying the fact that defendants 1 to 3 are the landlords of Chorekhali. As a matter of fact in the Rocord-of-Rights of mouzah Chorekhali, the names of defendants 1 to 3 appear as cosharer landlords. But the plaintiffs argue that in the Record-of-Rights the plaintiffs were recorded as being liable to pay rent only to the sarkars and nothing has been stated with regard to their being liable to pay rent to defendants 1 to 3. It may be that by some arrangement between the cosharer landlords, the rent due from the plaintiffs used to be paid only to the sarkars. It is found by the Munsiff that defendant 1 is a cosharer malik of Chorekhali; and he also finds that defendants 1 to 3 are also recorded as cosharer landlords of Chorekhali; and when the Munsiff says that defendant 4 is very likely the benamidar of defendants 1 to 3, it might be that defendant 4 was the benamidar of the other defendants both with regard to Chorekhali as well as Bardiahat. Therefore defendants 1 to 3 must be considered as the cosharer landlords with regard to the mouzah within which the plaintiffs claim to hold as raiyats or under raiyats. Further, even if defendant 4 was a cosharer landlord of Chorekhali and he was declared to have been in possession of the lands by the Magistrate's order in April 1921 and the plaintiffs sought to recover possession as against him also, no matter whether he put in appearance or not, or whether he pleaded special limitation or not, the special limitation under the Bengal Tenancy Act would apply to the suits. It has been held repeatedly that where a raiyat or an under-raiyat sues for recovery of possession and when the dispossession is by the landlord he must come within two years. Here there is no question that the plaintiffs plead that there was dispossession by all the four defendants and seek relief against all of them; it does not matter whether all the defendants or any one of them plead limitation or not, special limitation must apply to these cases.

7. Under the circumstances the appeals must be allowed. The judgments and decrees of the Courts below are set aside and the plaintiffs' suits dismissed. The appellants are entitled to their costs in all the Courts.

S.K. Ghose, J.

8. I agree.


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