Lancelot Sanderson, C.J.
1. This is an appeal from the decision of the learned Additional Subordinate Judge of Faridpur, which confirmed the decree of the First Court, whereby the plaintiffs were given a decree for declaration of their title by auction purchase in respect of the lands described in the schedule of the plaint, and that the plaintiffs should recover khas possession thereof as against all the defendants and that the terms of the solenamah between the plaintiffs and defendants Nos. 1 and 2 be embodied in the decree except in regard to costs.
2. In this case, the appeal is by defendants Nos. 5, 6 and 7 only. Defendants Nos. 1 and 2 agree to the decree against them. It is not necessary for me to go through all the facts of this case as they are stated in the judgments of the Courts below. In order to make my judgment intelligible it is necessary to state one or two facts. Defendants NOS. 5, 6 and 7 were mortgagees holding a mortgage executed in their favour by defendant No. 1 only. At a subsequent date--the exact date is to my mind significant, namely, the 13th of January 1910--it is alleged that by an oral agreement the mortgaged property was sold by defendants Nos. 1 and 2 to defendants Nos. 5, 6 and 7. The reason why I say the 13th of January 1910 is significant is that on the very next day, i e., the 14th of January 1910, the plaintiffs instituted a suit for recovery of money against defendants Nos. 1 and 2 and the lower Courts have apparently held that on the 13th of January 1910, defendants Nos. 1 and 2 were apprehensive of the suit which was filed on the following day by the plaintiffs. On the 16th of February 1910 an application was made by these defendants Nos. 5, 6 and 7 for mutation of their names, the Government being the landlord, and on the 17th of March 1910 an order for mutation of their names was made. In May 1911, the plaintiffs obtained their decree against defendants Nos. 1 and 2. In August 1912 the property was sold by auction in execution of that decree and it was bought by the plaintiffs. On the 20th of January 1913 the plaintiffs, obtained symbolical possession. They applied shortly afterwards to have their names inserted in the records instead of the defendants. That application was refused. In September 1913 they granted a burga lease to the first and second defendants which came to an end in September 1914, and the plaintiffs on the 27th of January 1916 brought this suit, claiming that a decree should be passed in their favour awarding them khas possession by evicting therefrom the defendants after a declaration that the temporary korfa projai right without right of occupancy, which the defendants Nos. 1 and 2 had under the plaintiffs in the land purchased by the plaintiffs at auction sale, had been destroyed after the expiration of the month of Pous and that the defendant No. 3 had never any right or ownership in the said lands.
3. The first point, that is taken on behalf of the appellants, is the main point, namely, that the learned Judge in the lower Appellate Court was wrong in holding that the plaintiffs obtained good title to this land by their auction-purchase in 1912, It was pointed out to the learned Vakil during the argument that that depended in the main upon the Question whether the alleged verbal sale of the 13th of January 1910 was a valid sale passing the property from defendants Nos. 1 and 2 to defendants Nos. 5,6 and 7. The learned Vakil agreed that this was so, subject to the further point that there was the question whether the holding was a transferable one. I may dispose of the latter question at once, It appears that in the First Court there was a finding of fact that the holding was transferable; and, in my judgment, it is clear that that question was not contested in the lower Appellate Court; and consequently that cannot be raised in second appeal: and, this appeal must be decided upon the assumption that the holding was transferable.
4. Then, with regard to the first point as to whether the alleged Verbal sale on the 13th of January 1910 was valid, in my judgment that point is decided by the findings of fact of the lower Appellate Court, which findings of fact concurred with the findings of fact of the First Court, namely, that that sale was not a valid sale, Then the learned Vakil argued that the findings of fact ought not to be accepted because it is apparent from the learned Judge's judgment in the lower Appellate Court that he had not considered the whole of the evidence, and that it must be taken that be had disregarded the verbal evidence. The learned Vakil based his argument chiefly on a sentence in the judgment which is to this effect: 'As regards the oral sale of the other defendants the evidence is wanting.' I read that as meaning that the learned Judge was not satisfied with the oral evidence which had been adduced on behalf of the defendants in respect of that matter. I do not read that as meaning that there was . no evidence upon the point, because I find that there was evidence from what the learned Vakil said and also from the judgment of the First Court: and, the learned Subordinate Judge must have considered that evidence and at the end of his judgment he says that 'On consideration of the whole evidence, therefore, I see no reason to disturb the finding of the learned Munsif.' It cannot be denied that the learned Munsif discussed this question very fully and consequently, in my judgment, the appellants are concluded upon this point by the findings of fact of the lover Appellate Court.
5. Then arises the further point which the learned Vakil raised, and that is whether the suit was-barred by limitation. It seems to me to at this question was not relied upon in the lower Appellate Court, but, in my judgment that does not preclude the learned Vakil from raising it here, It was obviously taken in the First Court and on the facts as found by both the Courts it is open to him to take it in second appeal. I am quite satisfied that the appellants did not rely upon it in the lower Appellate Court. The First Court drew attention to the fact that the plea of special limitation, which is the one on which the learned Vakil now relies, was casually raised at the time of the argument. It was not specially raised in the pleadings, nor was there any indication that such point was likely to be argued. I draw attention to this not for the purpose of deciding the point, but merely for the purpose of confirming my conclusion that the persons who argued this point in the First Court were not relying upon it to any great extent and in the lower Appellate Court it was never relied on at all. The point was whether Article 3 of Schedule III of the Bengal Tenancy Act applies to this case, because it is not denied that if the special limitation, as it is called, does not apply, there is no doubt that the suit is not barred by limitation. Therefore, the question is whether that Article applies to this case. In my judgment it does not, because in order to make Article 3, Schedule III, of the Bengal Tenancy Act applicable, it must be shown that the landlord was taking part in the dispossession which is therein referred to, or to use the words of two learned Judges of this Court, it must be shown that the dispossession 'has been caused by the landlord or by somebody acting in concert with him or at his instance.' Bheka Singh v. Nakchhed Singh 24 C. 40 at p. 43 : 12 Ind. Dec. (N.S.) 692. There is no finding of fast in either of the Courts that the landlord had anything to do with the dispossession of the plaintiffs in this case: and, in my judgment, it would be straining the facts of this case to say that the landlords had anything to do with the dispossession of the plaintiffs. That is sufficient to decide this point. But there is another answer to the point which the learned Vakil argued, namely] that it appears that defendants Nos. 1 and 2 executed a burga kabuliyat in favour of the plaintiffs and that they were in possession of the land from September 1913 to September 1914. Therefore, really it may be said that the plaintiffs by receipt of rent were in possession from September 1913 to September 1914, and this suit was brought in January 1916. Consequently, even if the special limitation applies to this case, it seems to me that it may be argued that the suit was brought within time. Consequently, inspite of the able argument which was presented to us on behalf of the appellants, in my judgment, I see no reason to interfere with the learned Judge's judgment: and this appeal must be dismissed with costs.
6. I agree.