1. This is an appeal by defendant 1 in a suit for confirmation of possession upon declaration of the plaintiff's title to suit land to the extent of seven annas and odd gandas share. Admittedly the suit land appertained to the jute of one Karim Sheik under defendant 1. Karim died in April 1927 leaving behind three sons, five daughters and a widow, Moson Bewai After his death one of his daughters died ; then died the widow Moson Bewa in 1933; and lastly another daughter died in the same year; Plaintiffs 1 to 3 are the surviving daughters ; plaintiffs 4 to 7 are the heirs of the deceased daughters. There is no dispute that as the result of the several successive deaths narrated in the plaint the plaintiffs' share in the estate left by Karim would amount to -7-3-1 1/11 kara. The case of the plaintiffs is that on the death of Karim Sheikh all his heirs were recorded as tenants in the place of Karim in respect of the holding in dispute in the present suit ; but that the landlord defendant 1 started a certificate proceeding only against the three sons of Karim for the realization of the arrears of rent of the holding in 1933 and in 'that proceeding purported to purchase the holding on 30th October 1934; that by this purchase he acquired only the right, title and interest of the three sons of Karim; but that even to this extent he did not disturb the actual possession of the old tenants. On these allegations the plaintiffs seek the relief mentioned above.
2. Defendant 1 alone contests the claim. His case is that the three sons of Karim were the only tenants recorded in his sherista and that the certificate in question haying thus been against all the recorded tenants, the tenancy was fully represented in that proceeding and consequently by the sale held therein the holding itself passed to defendant 1. His further case is that as he took possession of the holding on 10th July 1985; the old tenants became dispossessed thereby on that date and consequently (1) the present suit is not maintainable without a prayer for recovery of possession ; (2) the suit for possession is barred by limitation under Article 3, Schedule 3, Ben. Ten. Act, the suit having been instituted on 23rd April 1938, i.e., beyond two years from the date of dispossession.
3. The learned Munsif found that in the certificate proceeding the entire tenancy was not represented and that consequently defendant 1 by his purchase in that proceeding acquired only the right, title and interest of the three sons of Karim. As regards the plea of special limitation, the learned Munsif held that it did not apply (1) 'because the sisters Were not in actual possession of the land.' According to the learned Munsif the possession of the daughters was a constructive one through their brothers. He held that in the absence of actual physical possession, there could not be any dispossession within the meaning of Schedule 3, Article 3, Ben. Ten. Act, and that dispossession effected by the act of delivery of possession by the Court is not such dispossession as would bring the case within the article. The learned Munsif, therefore, decreed the plaintiffs' claim. On appeal by defendant 1 this decision was confirmed by the learned Subordinate Judge. On the point of limitation the learned Subordinate Judge observed:
The sisters did not actually possess the lands. The sons of Karim Sheikh possessed the lands. The possession of the sons of Karim Sheikh was not adverse to that of the plaintiffs, who occasionally enjoyed the usufruct of the lands. It appears from Ex. A that defendant 1 took delivery of possession of the lands on 10th July 1935. A mere delivery of possession unaccompanied by any act of actual possession will not certainly bring a case under Article 3 of Schedule 3, Ben. Ten. Act. It appears that shortly after taking delivery of possession defendant 1 settled the lands for three years with Kudrat Sheikh one of the sons of Karim Sheikh ; the possession of Kudrat, it does not appear, was at all disturbed after the delivery of possession. The possession of the plaintiffs was constructive. They possessed the lands through Kudrat Sheikh and others. Kudrat Sheikh and others never dispossessed the plaintiffs. Article 3 of Schedule 3, Ben. Ten. Act, does not apply when a person was not in actual possession of the land. As the plaintiffs were not actually dispossessed by Kudrat Sheikh the suit was not barred by limitation.
4. Mr. Sen appearing for the appellant contends that both the Courts below have gone wrong on the question of limitation. Strictly speaking the plaintiffs' case is not one of constructive possession through cosharers. Their case is one of actual possession through the agency of the three sons of Karim and by actual realization of the usufruct from them. The sale certificate (Ex. H) shows that defendant 1 purported to purchase the holding itself, though the legal effect of this purchase might have been limited to the shares of the three sons of Karim. The report of the delivery of possession (Ex. A) shows that on 10-7-1935 defendant 1 was given possession of the entire holding, plot by plot, and by entry on each plot by his agent. The report says: 'Protyek dager Bhumite nishandehike probesh koraiya oi bhumir modhye bansher Jhanda, puntiya...ritimoto dakhal diyachhi.'
5. This, in my opinion, constituted complete dispossession of all the then tenants including the present plaintiffs or their predecessors. It was a clear case of coming in of one person and driving out of another from possession. There is nothing constructive in the act of dispossession here. It is a case of actual ouster, at least of the persons in actual occupation of the land. Even if the plaintiffs were only in constructive possession through their cosharers, as these cosharers were completely ousted from the possession by this act, these cosharers and every one in possession through them, became dispossessed thereby. The purchaser here purported to purchase the entire holding and entered on the land in assertion of his exclusive right to the same. His claim to the entire sixteen annas was no doubt wrongful; but that was his claim in fact. There was thus no scope for his possession being also on behalf of the plaintiffs who happened to become his cosharers in lands.
6. In order to constitute dispossession of the person claiming to be in possession through somebody else, it is certainly not necessary that this last named person must dispossess the claimant. As possession may be acquired through agents, it may equally be lost through them. Possession involves a physical fact and a mental state. Apiscimur possessionem corpore et animo; negue per se animo, ant per se corpore : we gain possession with the body and mind; but not with the mind by itself, nor with the body by itself. Both occupation and intention are necessary to constitute possession. If either occupation or intention ceases, the possession is destroyed. Just as in the case of principal, so in that of an agent, possession may be lost (1) corpore or (2) animo. If the agent is ejected by a third party, a hostile occupation and possession at once arises, and the principal loses possession in the same way as if he had been personally evicted. But the question still remains whether this would amount to 'dispossession within the meaning of Article 3, Schedule 3, Ben. Ten. Act. In order to attract the operation of this Article the 'dispossession' must be by the 'defendant'--by the 'landlord'.
7. There has been some divergence of judicial opinion as to whether an ouster under a legal process at the instance of the landlord would be dispossession within the meaning of Article 3, Schedule 3, Ben. Ten. Act, so as to attract its operation. One view is that the article would equally apply if the landlord took possession through Court after having purchased the holding in execution of a money decree, and thereby dispossessed the raiyat. This view finds support in Fani Bhusan v. Pulin Chandra ('17) 4 A.I.R. 1917 Cal. 465, Satis Chandra v. Nitya Gopal ('18) 5 A.I.R. 1918 Cal. 699, Haris Chandra v. Nripendra Kumar ('20) 7 A.I.R. 1920 Cal. 852, Satish Chandra v. Hashem Ali : AIR1927Cal488 and Sheikh Alam v. Atul Chandra Roy : AIR1936Cal299 . The contrary view was taken in Gostha Bihari v. Amiya Kumar ('35) 63 Cal. 503 (Guha and Lodge JJ.) and also apparently in Ram Kinkar v. Shitiram Panja ('18) 5 A.I.R. 1918 Cal. 171 (Mookerjee and Walmsley JJ.) and Kamaldhar Thakur v. Rameshwar Singh Bahadur ('13) 17 C.W.N. 817 (N.R. Chatterjee and Digambar Chatterjee JJ.). In Ram Kinkar v. Shitiram Panja ('18) 5 A.I.R. 1918 Cal. 171 (Mookerjee and Walmsley JJ.) it was held that where a landlord, in execution of a decree for arrears of rent, puts a holding to sale, purchases it himself and obtains delivery of possession through Court, such dispossession of the tenant is not dispossession within the meaning of Article 3, Schedule 3, Bengal Tenancy Act. In this last named case Sir Ashutosh Mookerjee J. followed the decision in Kamaldhar Thakur v. Rameshwar Singh Bahadur ('13) 17 C.W.N. 817 and, added as a reason for so holding, the following : 'Indeed, so long as the sale remains in force, the possession of the landlord auction purchaser cannot possibly be challenged by way of suit.' In Kamaldhar Thakur v. Rameshwar Singh Bahadur ('13) 17 C.W.N. 817 one of the reasons in support of the view was given thus:
The landlord (as purchaser) no doubt, moves the Court to deliver possession and possession is delivered to him at his instance, but he gets possession through the intervention of the Court. The delivery of possession by which the dispossession is effected is an act of the Court and when the landlord gets into possession by a process of the Court, we do not think it is an act of dispossession by the landlord within the meaning of the article, which contemplates a dispossession by the landlord by taking the law into his own hands and otherwise than in due course of law.
8. In both these cases the plaintiff himself was the judgment-debtor and consequently the prior process of law was binding on him. With due respect to the learned Judges, I must say, the reasons given in these cases are indeed weighty reasons and the legal propositions laid down therein are of much inner value. The legal proposition laid down in the above cases has been accepted, if not ratione imperii at least imperio rationis. Guha and Lodge JJ. followed this authority in Gostha Bihari v. Amiya Kumar ('35) 63 Cal. 503 and thought that the reasons given by N.R. Chatterjea J. in Kamaldhar Thakur v. Rameshwar Singh Bahadur ('13) 17 C.W.N. 817 applied with full force in the case before them. Perhaps this was pouring of a new content into the rule. But then, there are the other series of cases and there is the decision of a Special Bench of three Judges of this Court in Satish Chandra v. Hashem Ali ('27) 14 A.I.R. 1927 Cal. 488 (Rankin C.J., C.C. Ghose and Mitter JJ.) in which the article was observed to be applicable even to a ease where the plaintiffs were some of the judgment debtors and consequently the process of delivery of possession was binding on them. The case as made out by the plaintiffs there was not the case of ouster by the machinery of a Court of law and, therefore, any observation with reference to cases of ouster by the machinery of a Court of law was mere obiter. But Rankin C. J. observed:
It is therefore not a case of ouster by the machinery of a Court of law, and although I agree with Page J. in the opinion that the meaning of dispossession is satisfied when the defendant, landlord comes in against the will of the occupying tenant even by the machinery of a Court of law, the present case does not actually require us to decide that question.
9. The decision in Gostha Bihari v. Amiya Kumar ('35) 63 Cal. 503 of a Division Bench of this Court referred to above gives rise to some difficulty, and perhaps, to a certain extent, extends the principle underlying the decision in Kamaldhar Thakur v. Rameshwar Singh Bahadur ('13) 17 C.W.N. 817 and Ram Kinkar v. Shitiram Panja ('18) 5 A.I.R. 1918 Cal. 171, even to a case where the plaintiff is a person who was not bound by the process of delivery of possession. In this case the holding in question originally belonged to one Bajani Kanto Mukherjee. He sold the same to Jogendra Karmakar, who on his part, sold it to one Badhabinod Mandol in 1908. These transfers were not recognised by the landlords, and, in their Sheresta, Bajani continued as the tenant. Badha Binod subsequently in 1921 executed mortgages in favour of the plaintiffs and the plaintiffs in enforcement of these mortgages purchased the mortgaged property in 1927. In the meantime Jadu Nath Das, one of the cosharers of the landlords obtained a money decree against Bajani Kanto and in execution of that decree purchased the property in 1924. He took delivery of possession on 25th July 1924. The plaintiff instituted the present suit for recovery of possession from Jadu Nath in 1929. The defendant contended (1) that the holding was a nontransferable one and consequently the plaintiffs acquired no title to it by their purchase and (2) that in any case the plaintiffs' claim was barred by special law of limitation contained in Article 8 of Schedule 3, Ben. Ten. Act. R.C. Mitter J. upheld the defence plea of limitation. On appeal under the Letters Patent, Guha and Lodge JJ. reversed this decision applying to this case the principle of the decision in Kamaldhar Thakur v. Rameshwar Singh Bahadur ('13) 17 C.W.N. 817. It was not decided whether the holding was transferable or not. If it was not transferable, then the plaintiffs' suit would fail for want of title, or they would succeed as regards the question of title only on the footing that their mortgagor Radha Binod acquired the tenancy right by adverse possession. Even then if the holding was a nontransferable one their purchase of 1927 would have been of no avail to them. The question of limitation could however arise only on the footing that the plaintiffs and their predecessor Radha Binod had acquired the raiyati interest. If so, the process of delivery of possession against Bajani was not binding on Radha Binod. Consequently, if by that process Radha Binod lost his possession it was not a dispossession 'in due course of law' and nothing would have prevented him to challenge the possession of the cosharer landlord Jadu Nath immediately by way of suit. Strictly speaking this was therefore not a case where the principle of the decision in Kamaldhar Thakur v. Rameshwar Singh Bahadur ('13) 17 C.W.N. 817 would legitimately apply. It was however so applied by Guha and Lodge JJ. Their decision in my opinion is a projection of the earlier rule to a new case with dissimilar content. Their decision was given on 30th July 1935. But thereafter on 20th August of the same year our learned brothers Nasim Ali and Henderson JJ. gave their decision in Sheikh Alam v. Atul Chandra Roy : AIR1936Cal299 wherein they upheld the plea of limitation in a case of the present type, I prefer to follow the last named decision which followed the earlier decisions of this Court noticed above.
10. In my opinion therefore the possession taken by defendant 1 in the present case on 10th July 1935 constituted a dispossession of the plaintiffs by the landlord within the meaning of Article 3, Schedule 3, Ben. Ten. Act. The suit therefore must be held to have been barred by the special law of limitation. I therefore allow this appeal. The judgments and decrees of the Courts below are set aside and the plaintiffs' suit is dismissed. But I make no order as to costs.