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Sheikh Alam and ors. Vs. Atul Chandra Roy and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Reported inAIR1936Cal299,163Ind.Cas.84
AppellantSheikh Alam and ors.
RespondentAtul Chandra Roy and ors.
Cases ReferredSatish Chandra v. Hashem Ali Kazi
Excerpt:
- .....is therefore clear that the present suit was not commenced within two years from the date of the dispossession of the plaintiffs from the disputed lands by defendants 1 to 5. defendants 1 to 5 are admittedly co-sharer landlords. 'dispossession' in article 3, schedule 3, ben. ten. act, means dispossession by landlord. the fact that defendants 1 to 5 dispossessed the plaintiffs as auction-purchasers cannot take the case from the operation of article 3 inasmuch as it would not be reasonable to add to col. 3, not merely the words 'by the defendants,' not merely the words by the landlord, but the words 'by the landlord as such': see satish chandra v. hashem ali kazi 1927 cal 488. the provisions of article 3 are attracted if the raiyat wants to recover possession by a suit from his landlord.....
Judgment:

Nasim Ali, J.

1. This appeal arises out of a suit for possession. The trial Court decreed the suit. On appeal the learned Judge has affirmed the finding of the trial Court on the question of plaintiffs' title. He has, however, dismissed the suit on the ground that it is barred by limitation under Article 3, Schedule 3, Ben. Ten. Act. Hence this second appeal by the plaintiffs.

2. The only point for determination in this appeal is whether the suit is barred by special limitation. The facts which are material in this connection are these:

3. The disputed lands appertain to the occupancy holding of one Meajan under defendants 1 to 5 and some other persons. Meajan died leaving behind a widow Jokarjan, a son Tukani and three daughters Matijan, Rabjan and Mamjan. Plaintiffs 1 to 5 and 9 to 13 claim title to the disputed lands on the basis of certain usufructuary mortgages executed by Meajan and after his death by Tukani. The other plaintiffs are Rabjan, Mamjan and the husband of the deceased Matijan. Defendants 1 to 5, who are co-sharer landlords of the holding purchased the right, title and interest of Tukani's heirs in execution of a money decree on 8th August 1922, and took delivery of possession through Court under Order 21, Rule 95, Civil P. C., on 5th February 1923. On 29th May 1923 a proceeding under Section 145, Criminal P. C., was started, and by an order of the Criminal Court passed on 9th November 1923 defendants 1 to 5 were declared to be in possession. After this one of the defendants brought a criminal case under Section 426, I. P. C., against the plaintiff Anam who was in possession of the disputed lands on behalf of all the plaintiffs. This case was compromised on 4th April 1924. In the petition of compromise it was admitted by Anam that the lands were in possession of defendants 1 to 5. The present suit was instituted on 26th February 1926.

4. It is therefore clear that the present suit was not commenced within two years from the date of the dispossession of the plaintiffs from the disputed lands by defendants 1 to 5. Defendants 1 to 5 are admittedly co-sharer landlords. 'Dispossession' in Article 3, Schedule 3, Ben. Ten. Act, means dispossession by landlord. The fact that defendants 1 to 5 dispossessed the plaintiffs as auction-purchasers cannot take the case from the operation of Article 3 inasmuch as it would not be reasonable to add to Col. 3, not merely the words 'by the defendants,' not merely the words by the landlord, but the words 'by the landlord as such': see Satish Chandra v. Hashem Ali Kazi 1927 Cal 488. The provisions of Article 3 are attracted if the raiyat wants to recover possession by a suit from his landlord who has wrongfully dispossessed him from his holding. The reason or excuse given or supposed to be given by the landlord for dispossessing the raiyat has no bearing on the enactment. Again the mere fact that the dispossession of the plaintiffs is brought about through the process of the Court cannot take away the case from the operation of Article 3 because the responsibility for the dispossession is on the landlord who resorts to the process of the Court as a mode of effecting ouster. See the observations of Page, J., and Rankin, C. J., in the case cited above.

5. The usufructuary mortgagees are also hit by Article 3 inasmuch as they were in possession at the time of the dispossession and therefore they had a right to put an end to the trespass by the landlord by bringing a suit for ejectment within the time prescribed by law. The learned Judge was therefore right in holding that the suit is barred by limitation. The appeal is therefore dismissed. The cross-objections are not pressed and are dismissed without costs.

Henderson, J.

6. I agree.


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