1. This appeal is by the defendants in a suit for recovery of possession of certain lands as belonging to an occupancy holding. The land had belonged to two brothers, Kashinath and Shibnath, and the plaintiff is Shibnath's reversionary heir. It is found by the learned Courts below that Shibnath had predeceased his brother Kashinath and, therefore, the plaintiff was only entitled to recover a half share of the tenancy. The property in suit had been sold by Shibnath's widow, Tushta Bewa, to the defendants, who are some of the cosharer landlords. Tushta died in Chaitra 1324, and the suit was instituted just after six years after her death.
2. The question which is raised before us is the question of limitation. The defendants, who are the appellants before us, contend that the special rule of limitation contained in Article 3, Schedule 3, Ben. Ten. Act applies, and that the period of limitation for the suit is two years from Tushta's death. Article 3, Schedule 3, Ben. Ten. Act, declares the period of limitation in suits by a raiyat or under-raiyat, where dispossession is by the landlord. The defendants are certainly landlords, but the question is whether there was any dispossession. The defendants contend that by their retention of possession after Tushta's death they dispossessed the plaintiff. This contention is not sound. In order that there should be dispossession, there should first have been possession. Had the plaintiff had possession at any time prior to the sale by Tushta or prior to the occupation of the land by the defendants, then the defendants might have dispossessed the plaintiff; but where, as in the present case, the plaintiff had never been in possession and he had never had the right to possess, the fact that the defendants had continued in possession after Tushta's death does not amount to dispossession during Tushta's life time; the defendants were entitled to possess the land, because it was open to Tushta to part with her widow's interest in the property. The defendants' right expired at the time of Tushta's death. But that in itself will not constitute their continuance of possession into an act of dispossession, for the purpose of the rule of limitation laid down in the article referred to above. The appeal, therefore, fails and is dismissed with costs.