1. This was a suit for recovery of possession of certain plots of land. The suit was dismissed by the Munsif who found that the plaintiff had no right, that his allegation of dispossession was false and that his claim was barred by limitation. That decision was reversed on appeal.
2. The two points that have been urged before me by the learned pleader who appears for the appellant, are these: The first and most important one is, whether the suit is barred. The dispossession alleged in the plaint took place in 1308 (corresponding with 1901) and the suit was not brought until the close of 1905, and it is contended that the special law of limitation of two years enacted by Article 8 of the second Schedule to the Bengal Tenancy Act, is applicable. That provision states that a suit to recover possession of land claimed by the plaintiff as an occupancy rayiat (for the suit is governed by the law in force prior to the amendment of that article) must be brought within a period of two years from the date of dispossession. In support of his argument the learned pleader for the appellant referred me to a number of cases reported in Chintamoni Sahu v. Upendra Nath Sarnokar 4 C.W.N. 326 and Bheka Singh v. Nakchhed Singh 24 C. 40, Rakhit Mahanta v. Puddo Bauri 9 C.W.N. 54 and Aminuddin Munshi v. Ulfatunnissa Bibi 3 Ind. Cas. 315 : 9 C.L.J. 131 : 13 C.W.N. 108. These cases are relied upon to show that the dispossession of the plaintiff was made by the defendants-appellants acting under a settlement which they had obtained from either the plaintiff landlord, Tilok Dass or his heirs. I put the matter in the alternative because the case as originally made was that the defendants-appellants got the lands from Tilok Dass. For the respondents, reliance has been placed on a Full Bench decision in Ramijulla v. Ishah Dhali 6 C.W.N. 702 and the decision reported in Lake Nath Gope v. Petambar Ghose 3 C.W.N. 215. In order to see whether this article is applicable, one must look at the facts as found in this judgment, and the finding upon this point is as follows: 'The defendants' (that is to say, the appellants before me) 'have failed to satisfy me that they got the lands from Tilok,' so that the alleged tenancy from Tilok Dass is negatived. The learned Judge then goes on to say 'Tilok's heirs may have set up the defendants as tenants after they failed to recover the lands from the possession of the plaintiff, but it does not follow, he continues that the period of limitation prescribed in the Bengal Tenancy Act -would apply.' As I read this judgment it means this, there was no tenancy created by Tilok Dass in favour of the defendants-appellants but there may have been a colourable and sham settlement in which Tilok's heirs were concerned. It has not been contested before me that if that is the proper reading of the judgment, the appellants have no case, and if that be so a passage in Loke Nath Gope v. Petambar Ghose 3 C.W.N. 215 would appear to be in point, where the learned Judge says' On the other hand if the settlement was merely a colourable one and not made in reality then, as the Subordinate Judge finds, there is no ground for supposing that that would affect the title of the defendants.' This appears to me to be grounded in reason, because if it is thought to bind the tenant by a short period of limitation of two years it must be strictly shown that the ouster is an ouster by the landlord and known to the tenant as such. Otherwise, it is obvious that the tenant might be barred before he ever knew it or had the opportunity of knowing it. I hold, therefore, that this point fails and the suit is not barred.
3. The second point taken is this that the lower appellate Court has granted khas possession to the plaintiff, whereas all (sic) he asked for in his plaint was (sic) through Bargadar defendant No. 6. It, (sic) not appear to me that the Court has do No doubt in the judgment the Subora (sic) Judge says 'that the evidence on the plaintiff's side in respect of No. 6 defendant's possession of the lands as Bargadar under the plaintiff is shaky and discrepant but plaintiff can be believed when he speaks about possession of the lands in suit.' When, however, he conies to deal with the appeal itself he says that the appeal is decreed with costs. By that I understand that the suit is also decreed, and that the relief was given to the plaintiff which he had asked for and no more namely, a decree for possessoin through his Bargadar defendant No. 6 I think the concluding portion of the judgment in which the Subordinate Judge says that the plaintiff's right to the land in suit is established and that he do get possession of the land, refers to the same thing, namely, that the plaintiff is entitled to possession through his tenant, the defendant No. 6, that being the possession which he asked for.
4. The appeal, therefore, must be dismissed with costs.