1. After hearing the learned Vakils on both sides I am of opinion that the appeal must be decreed.
2. The only question raised before the lower appellate Court was one of limitation, the question being whether 2 years' special limitation as provided by the Bengal Tenancy Act applied or whether the ordinary limitation of 12 years.
3. The Court of the first instance held that the 12 years' limitation applied. The lower appellate Court on the contrary held that it was governed by the two years' limitation.
4. The plaintiff's ' case was that the land in suit originally formed part of his holding and that he allowed the defendant to build a house on it on the understanding that he should pay a certain rent. The defendant build the house and afterwards refused to pay rent to the plaintiff. He then went to the superior landlord, obtained a settlement of the land from him and since then has been paying rent to the superior landlord.
5. The lower appellate Court held that these acts on the part of the defendant constituted dispossession of the plaintiff by the landlord or the landlord's agents. In my opinion this view is not correct in law. The facts admitted and proved are that the defendant was let into possession of the land by the plaintiff and it was only after he had been so let into possession and had built his house on the land that he denied the plaintiff's title and thereby dispossessed him. The defendant afterwards obtained a settlement from the landlord but in so doing he really sought the assistance of the landlord to maintain the ouster which he had effected. The ouster was not in fact brought about by landlord or by the defendant in aid of the landlord.
6. In my opinion the view taken by the lower appellate Court is not in accordance with law and I, therefore, set aside the judgment and decree of the lower appellate Court and restore the judgment and decree of the Court of first instance with costs.
7. The appeal is decreed with costs.
8. The finding of the Court of the first instance is that the defendant-appellant entered into possession of the land in suit with the permission of the plaintiff. That finding has not been controverted by the Judge of the lower appellate Court; but he has applied to the conduct of the defendant-appellant a legal term which was not properly applicable, for he has described his conduct as amounting to a dispossession 'of the plaintiff. In truth there was no dispossession' but merely 'adverse possession.' In the circumstances Mr. Justice Brett was perfectly right in the conclusion at which he arrived. We must, therefore, dismiss this appeal with costs.