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Durgapada Panja Vs. Bhusan Chandra Ghose and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in39Ind.Cas.383
AppellantDurgapada Panja
RespondentBhusan Chandra Ghose and ors.
Cases ReferredRudra Narain Maity v. Natabar Jana
Excerpt:
bengal tenancy act (viii b.c. of 1885), schedule iii, article 3, applicability of - limitation, special--dispossession by execution-purchaser. - .....has held that the two years' rule of limitation is not applicable, that is to say, he holds that dispossession by the purchaser at the sale held at the instance of the landlord is not dispossession by, or at the instance of, or in collusion with the landlord.5. it is difficult to reconcile the two cases severally relied on by the two courts, but possibly in the case of aminuddin munshi v. ulfutunnissa bibi 3 ind. cas. 315 ; 13 c.w.n. 108 ; 9 c.l.j. 131 the facts have not been fully reported and the view taken in the case of kamal dhari thakur v. rameshwar singh bahadur 19 ind. cas. 545 ; 17 c.w.n. 817 appears to be more in accordance with the decisions in abhoy churn mookerjee v. shaik titu 2 c.w.n. 175. brojo kishore mahapatrd v. saraswati dassi 6 c.w.n. 333 and mahomed khalil v......
Judgment:

1. In this case the plaintiff sued to recover possession of 1 bigha 6 cottahs of land as appertaining to his holding bearing a yearly rent of Rs. 54 8-0.

2. It appears that the landlord sued the present plaintiffs and others for arrears of rent in respect of another holding with a rent of Rs. 9 odd. In that suit in the description of the holding the landlord included the plot now in question. In the result the suit was dismissed as against the present plaintiffs and decreed ex parte against other defendants. In execution of the decree the landlord put the holding to sale and the auction-purchaser has taken possession of the holding and of the plot now in suit, which was described in the sale proceedings as part thereof Delivery of possession by the Court was in Chait 1315 and the present suit for recovery of possession was brought by the plaintiff on the 18th of January 1913/1319.

3. On these facts the Court of first instance, relying on the case of Aminuddin Munshi v. Ulfutunnissa Bibi 3 Ind. Cas. 315 ; 13 C.W.N. 108 ; 9 C.L.J. 131, held that the plaintiff's suit was barred by the two years' rule of limitation contained in Article 3 of Schedule III to the Bengal Tenancy Act.

4. In the Court of first appeal the learned Subordinate Judge, relying on the case of Kamal Dhari Thakur v. Rameshwar Singh Bahadur 19 Ind. Cas. 545 ; 17 C.W.N. 817, has held that the two years' rule of limitation is not applicable, that is to say, he holds that dispossession by the purchaser at the sale held at the instance of the landlord is not dispossession by, or at the instance of, or in collusion with the landlord.

5. It is difficult to reconcile the two cases severally relied on by the two Courts, but possibly in the case of Aminuddin Munshi v. Ulfutunnissa Bibi 3 Ind. Cas. 315 ; 13 C.W.N. 108 ; 9 C.L.J. 131 the facts have not been fully reported and the view taken in the case of Kamal Dhari Thakur v. Rameshwar Singh Bahadur 19 Ind. Cas. 545 ; 17 C.W.N. 817 appears to be more in accordance with the decisions in Abhoy Churn Mookerjee v. Shaik Titu 2 C.W.N. 175. Brojo Kishore Mahapatrd v. Saraswati Dassi 6 C.W.N. 333 and Mahomed Khalil v. Hirendra Nath Bhattacharya 5 C.L.J. 650, in which the landlord was himself the auction purchaser, and also with the trend of opinion in later cases, e.g., Basanta Kumari v. Nanda Ram 20 Ind. Cas. 360 ; 18 C.L.J. 86 ; 17 C.W.N. 1149 and Rudra Narain Maity v. Natabar Jana 21 Ind, Cas. 431 ; 18 C.L.J. 89 ; 18 C.W.N. 853 ; 41 C. 52 in favour of restricting the theory of constructive dispossession by the landlords in cases between raiyats and third parties. In this connection we may refer also to the case of Rudra Narain Maity v. Natabar Jana 21 Ind, Cas. 431 ; 18 C.L.J. 89 ; 18 C.W.N. 853 ; 41 C. 52.

6. As at present advised we are, therefore, of opinion that we should affirm the decision of the Subordinate Judge and dismiss this appeal. Costs to abide the result.


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