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Abdul Kader Sarkar Vs. Shaikh Lal Mahomed and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal775,84Ind.Cas.25
AppellantAbdul Kader Sarkar
RespondentShaikh Lal Mahomed and ors.
Cases Referred and Chandra Benode Kundu v. Shaikh Ala Bux
Excerpt:
bengal tenancy act (viii of 1885), schedule 111, article 3, applicability of - non-transferable occupancy holding, purchaser of, position of--recognition by some landlords--dispossession, by others--suit for possession--limitation. - .....the court of first instance held that the plaintiffs were entitled to a decree in respect of the shares of the landlords who had recognised their purchase of the tenancy and consequently made a decree in the following terms: 'the title of the plaintiffs to the laud in suit, excepting one anna one gunda one kranti odd share therein.' which is the share of the contesting defendant, 'be hereby declared, and he will get khas possession of that share decreed as against the defendant.' the position, then, is that the defendant has successfully resisted the claim of the plaintiffs in respect of his share on the allegation that there is no relationship of landlord and tenant between himself and the plaintiffs. as regards the remaining share wherein he has no title as holder of the superior.....
Judgment:

1. The only substantial question of law which arises in this appeal relates to the true construction of Article 3 of Schedule 111 of the Bengal Tenancy Act. That Article provides that a suit to recover possession of land claimed by the plaintiff as a raiyat or an under raiyat must 'be instituted within two years from the date of dispossession. It is now well-settled, as was first ruled in the case of Ramjanee Bibee v. Amoo Beparee 15 C. 317 : 7 Ind. Dec. (N.S.) 795 that this Article relates only to a suit brought by a raiyat or under raiyat against his landlord and does not govern a suit by a tenant against third parties who are trespassers. This view was approved in Ramdhan Bhadra v. Ram Kumar Dey 17 C. 926 : 8 Ind. Dec. (N.S.) 1162 and was reiterated in the following terms in Parameswar Nomasudra v. Kali Mohan Nomasudra 4 C. W.N. 801 at P. 803 : 28 C. 127: 'The rulings of this Court are to the effect that when a landlord dispossessed his tenant, the two years' rule is applicable and that would seem to us to apply to dispossession by a fractioned landlord as well as to dispossession by the sole landlord or by the entire body of landlords.' There is, in our opinion, no doubt as to the true interpretation of the Article, though isolated expressions may be found in some of the cases in the book such as Annada Sundari Chaudalini v. Kebulram Changa 7 C. W.N. 542 and Kamaldhari Thakur v. Rameshur Singh 19 Ind. Cas. 545 : 17 C.W.N. 817 which, may be open to comment or criticism and which may seem irreconcilable with the rule just enunciated. The case before us, however, is free from difficulty.

2. The plaintiffs, who are respondents in this appeal, purchased a non-transferable occupancy holding, the subject of the dispute, on the 25th June 1908. The result of this purchase was, as pointed out in the cases of Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 20 C.L.J. 52 : 18 C.W.N. 971 and Chandra Benode Kundu v. Shaikh Ala Bux 58 Ind. Cas. 353 : 48 C. 184 : 31 C.L.J. 510 : 24 C.W.N. 818 that the purchasers acquired a good title as against the vendors, but they did not acquire a title enforceable as against the landlords of their vendors. The plaintiffs as purchasers adopted this view, and approached the landlords for recognition of the purchase made by them. It transpires that all the landlords other than the contesting defendant, accepted the plaintiffs as their tenants in respect of the disputed land. The contesting defendant, however, did not recognize the plaintiffs and proceeded to take possession, not merely of his own share of the land, but of the entire holding. The plaintiffs thereupon instituted this suit on the 17th January 1917 to recover possession of the holding. The claim was resisted on the ground that inasmuch as possession had been taken by the contesting defendants on the 2nd February 1914, that is, more, than two years prior to the date of the institution of the suit, the claim was barred by limitation under Art, 3 of Schedule III of the Bengal Tenancy Act. This contention, which has been overruled by all the Courts cannot, in our opinion, possibly prevail. The Court of first instance held that the plaintiffs were entitled to a decree in respect of the shares of the landlords who had recognised their purchase of the tenancy and consequently made a decree in the following terms: 'The title of the plaintiffs to the laud in suit, excepting one anna one gunda one kranti odd share therein.' which is the share of the contesting defendant, 'be hereby declared, and he will get khas possession of that share decreed as against the defendant.' The position, then, is that the defendant has successfully resisted the claim of the plaintiffs in respect of his share on the allegation that there is no relationship of landlord and tenant between himself and the plaintiffs. As regards the remaining share wherein he has no title as holder of the superior interest, he takes up a contradictory position and contends that the claim of the plaintiffs in respect of that share is barred by limitation, because the plaintiffs must be deemed to have been dispossessed by him in his character as landlord. There is a double inconsistency involved in this assertion. In the first place, he is not the landlord of the plaintiffs even in respect of his own share; secondly, he does not possess the landlord's interest in respect of the other share. In these circumstances, we cannot hold that Article 3 applies in respect of the share which has been decreed in favour of the plaintiffs by all the Courts. The decree made by Mr. Justice Chatterjea must, consequently, be affirmed and this appeal dismissed without costs.


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