1. The land in suit in this case was originally in the tenancy of one Madhu Bhuinya. It appears that one Tara Prosad Pal, who was at one time the ijaradar of the mahal in which the land lies, brought a suit for rent against Madhu, obtained a decree and sold the holding. At the sale the holding was purchased by the plaintiff. That was in 1890. Many years after that another suit was brought for rent against the same Madhu Bhuinya and the property was purchased in the execution sale by the first defendant, the plaintiff's case was that this second decree and sale were fraudulent; that he was all along the tenant of the land which he had sublet to defendant No. 3; that he brought a suit against defendant No. 3 for rent in which defendant No. 3 repudiated the relationship of landlord and tenant. The suit was, therefore, dismissed and on inquiry the plaintiff came to know of this fraudulent decree and sale and that defendant No. 1 had purchased the holding. Defendant No 3 claims to hold the land as a sub-tenant under defendant No. 1 Defendant No. 2 is the gomashta of the landlord in Collusion with whom the decree is said to have been obtained. The plaintiff, therefore; alleging that he was dispossessed in January 1905 by reason of this fraudulent suit brought by defendant No. 2 and the consequent execution purchase by defendant No. 1, brings this suit for recovery of possession. The suit has been decreed and the defendant No. 1 appeals to this Court. It is first contended on behalf of the appellant that there is no sufficient legal evidence of the plaintiff's rights. The plaintiff's title, as I have said, is based on the purchase in 1890 and the question arose in the Courts below whether that purchase was made in the execution of a decree under the Tenancy Act under which the holding was sold for its own arrears or was made in the execution of a mere money-decree under which the tenancy would not pass. The learned Subordinate Judge held that the execution in the course of which the land was purchased was the execution of a rent decree. He based this finding on the sale certificate which showed that the execution case was a rent execution case and he inferred from that that the decree executed was also a rent decree under the Tenancy Act. I am not prepared to say that if this were all I could interfere with the decision of the learned Subordinate Judge based as it is on evidence, or could say that his finding was not a finding of fact. It is argued, however, that in coming to this conclusion the learned Subordinate Judge has clearly omitted to notice a very important piece of evidence, namely, that the ijara of Tara Prosad Pal, admittedly came to an end in 1885 many years before the plaintiff's purchase, and it is argued that if the suit for rent was brought after the expiration of Tara Prosad Pal's ijara, the decree obtained by him would not be a rent-decree, and the holding would not pass at a sale in execution. Assuming for the purpose of this case, that the suit for rent was brought after the expiration of Tara Prosad Pal's ijara, I have to decide whether on that account the decree could not possibly be a rent decree under the Tenancy Act, in execution of which the holding itself could be sold. The learned Pleader for the appellant relies on the case of Srimant Roy v. Mahadeo Mahata 31 C. 550. That case is certainly in his favour. It was held therein that when a ticcadar obtained a decree for rent after the expiration of his ticca all that he could sell was the right, title and interest of the tenant but that he could not sell the tenure. I am strongly inclined to follow this ruling. It seems to me very doubtful whether when the relationship of landlord and tenant has expired and the former landlord brings a suit against the former tenant for rent which accrued due during the tenancy that money can still be regarded as rent as defined in the Bengal Tenancy Act. At the time the suit is brought the money, it appears to me, can hardly be said to be payable by a tenant to his landlord and I doubt, therefore, whether a suit for that money can be regarded as a suit for rent as defined in the Bengal Tenancy Act. There is, however, authority on the other side, namely, the decision in the case of Maharaj Bahadur Singh v. Forbes 35 C. 737 : 7 C.L.J. 652. In that case the learned Judges considered that the case of Srimant Roy v. Mahadeo Mahata 31 C. 550, to which I have alluded, was no longer an authority, inasmuch as the case of Hem Chunder Bhunjo v. Mon Mohini Dasi 3 C.W.N. 604 on which it was based, had been overruled by a Full Bench Khetra Pal Singh v. Kritharthamoyi Dassi 33 C. 566 : 10 C.W.N. 547 (F.B.) : 3 C.L.J. 470. The case of Hem Chunder Bhunjo v. Mon Mohini Dasi 3 C.W.N. 604, however, is an entirely different case from the case of Srimant Roy v. Mahadeo Mahata 31 C. 550 and I respectfully venture to doubt whether the Full Bench can be regarded as overruling it. There is also the case of Chhatrapat Singh v. Gopi Chand Bothra 26 C. 750 : 4 C.W.H. 446 in which the learned Judges certainly appear to have thought that the termination of the landlord's interest would not prevent his decree for rent or for what had been rent, from, being executed under the provisions of the Tenancy Act by the sale of the tenancy in respect of which the rent had been payable; though, as pointed out in the case of Srimant v. Mahadeo Mahata 31 C. 550 there is no formal decision on this point in the case. It seems, therefore, that there is a conflict of authority on this point, and though I am inclined to follow the case of Srimant Roy v. Mahadeo Mahata 31 C. 550 yet I must admit that the balance of authority is perhaps against the view taken in that case. But in the view that I take in this case it is unnecessary for me to come to a final decision on this point.
2. Secondly, it is argued that the learned Subordinate Judge was wrong in holding that the second decree in execution of which defendant No. 1 purchased the holding was fraudulent. The learned Subordinate Judge relied on certain dakhilas produced by the plaintiff which show that the landlord accepted rent from him as marfatdar, and held that these dakhilas showed that the landlord knew that the plaintiff was in possession, and that, consequently, the suit against the original tenant was fraudulent. It is argued on the authority of several cases of which the last is Deb Narain Dutt v. Baidya Nath Modak Napit 14 C.W.N. 68 : 2 Ind. Cas. 148 that these dakhilas did not show that the landlord had ever recognised the plaintiff to be the real tenant and that, therefore, he was entitled to sue the original tenant of the land. This, however, is not all the evidence on which the learned Subordinate Judge relies. He says,--'the reasons given by the learned Munsif for his coming to the conclusion that the decree was not bona fide are correct and fully supported by the evidence on the record', and the Munsif refers to other evidence, such as a certain compromise between the landlords gomashta and the plaintiff in addition to this evidence with respect to dakhilas. The decision of the learned Subordinate Judge on this point, therefore, appears to me to be a finding of fact based on evidence with which I cannot interfere in second appeal.
3. Thirdly, it is argued that the suit is barred by the law of limitation laid down in Schedule III to the Bengal Tenancy Act. It appears to me that this contention must prevail. The plaintiff was admittedly dispossessed in January 1905. It is clear that the manner of his dispossession was that the landlord obtained a decree for rent and in execution of that decree sold the holding which was purchased by the first defendant. It is now settled that when a tenant is dispossessed of his land by another tenant and the landlord has a hand in the ouster the limitation laid down in the Schedule applies. It has also been held that when a landlord sells a holding in execution of a decree for rent and the holding is purchased by another raiyat the special limitation will apply. The case of Amin-ud-din Munshi v. Ulfut-un-nissa Bibi 13 C.W.N. 108 : 3 Ind. Cas. 315 : 9 C.L.T. 131 seems to me a clear authority for this view. There are several cases in which co-sharer landlords have sold holdings for their shares of the rent due and purchased them themselves. And it has been held that in such cases when they dispossessed the tenants the dispossession was not effected by them qua landlords but qua auction-purchasers. But these decisions appear to me to be wholly dissimilar to the case now before me. If the whole body of landlords bring a suit for rent, obtain a decree, in execution sell the holding which is purchased by another tenant I do not see how it can be disputed that they have a hand, in the ouster. The learned Subordinate Judge holds that the landlord in this case had not a hand in the ouster because every thing was done by his gomashta, the defendant No. 2. He says,--'In this case there is nothing to show that the landlord was colluding with defendant No. 1 On the other hand it is clear that defendant No. 1 is in collusion with defendant No. 2 who is not the landlord but who is landlord's gomashta who hood-winked the landlord in all respects.' This finding is totally inconsistent with a finding at which the learned Subordinate Judge arrived a little earlier in his judgment which runs as follows: 'It was, in my opinion, fraudulent on the part of the zemindar to sue the old tenant instead of the plaintiff for rent. The dakhilas produced by the plaintiff Show that the landlord knew that he was in possession.' It is not disputed that the landlord was the plaintiff in the suit and the holder of the decree in execution of which the first defendant purchased. It is not suggested that the gomashta exceeded his powers in filing the suit for rent. It appears that the landlord lives elsewhere and leaves the whole management of his estate to his gomashta. He has no personal knowledge of the circumstances of the case. But I am assured by the learned Pleader for the appellant that there is no evidence whatever on the record that the gomashta, actively and deliberately concealed anything from the landlord in connection with this matter and the learned Pleader for the respondent, to whom I gave an opportunity of looking through the evidence to see if he could question this assurance, was unable to show to me anything which would imply that the landlord was in any way misled or deceived by the gomashta. A finding of fact, which is based on no evidence whatever can be questioned in second appeal, and even if the rent suit which resulted ultimately in the dispossession of the plaintiff was brought by the landlord in ignorance or even by being deceived, that fact does not make it any the less true that the plaintiff was dispossessed by the action of the landlord. Under the circumstances it seems to me that the landlord must be regarded as the real plaintiff in the suit for rent and the real decree-holder in the execution case in the course of which the first defendant purchased the holding. Therefore, it appears to me clear that the landlord had a hand in the ouster of the plaintiff; and the limitation laid down in Schedule III to the Tenancy Act applies. The dispossession took place in January 1905 and the suit was instituted in January 1908. The suit, therefore, appears to me to be barred by limitation. The appeal must be allowed and the suit dismissed with costs of this Court and of the first Appellate Court.