1. The only question In support of this appeal is a question of limitation.
2. Defendants Nos. 1 and 2 who are the appellants in this appeal contend that the plaintiffs' suit was barred by reason of the provisions contained in Section 27 of Act VIII of 1869. In order to appreciate this contention it is necessary to look into the plaint and the cases put forward on behalf of the. respective parties. The plaintiffs in their plaint alleged that they were the holders of a mourasi jote which had descended to them from their father Ganesh Nath, that in the year 1320 corresponding to 1914 the plaintiffs' father left the village for certain purposes of his own and that the principal defendants, namely, defendants Nos. 1 to 3 taking advantage of the absence of the plaintiffs' father settled the lands' of this jote with the other defendants, namely, defendant? Nos. 4 and 5, that subsequently the principal defendants instituted a suit against the defendants Nos. 4 and 5 and obtained a decree in ejectment as against them. The plaintiffs, therefore, alleged that it was necessary for them to have a declaration of their title to the jote and to have a decree also for confirmation of their possession therein, when the suit was pending the decree referred to above was executed by the defendants Nos. 1 to 3 against the other defendants, and upon that on the application of the plaintiffs, their plaint was amended and a prayer was included to the effect that they should be awarded a decree for khas possession. In the plaint two schedules of properties were given Schedule (A) being the lands in respect of which the declaration of title and recovery of possession were sought for and Schedule (B) being the lands which, it was alleged on behalf of the plaintiffs, had been given by them in mortgage to some third party. The plaintiffs' case was that their father, at the time of leaving the village arranged with the defendants Nos. 4 and 5 to cultivate the lands of Schedule (A) in bhag, and that they had never abandoned the holding inasmuch as they were in possession of Schedule (A) lands through the defendants Nos. 4 and 5 and of Schedule (B) lands through the mortgagee who was in possession thereof.
3. Of the defendants defendant No. 3 did not appear nor the other defendants, namely, defendants Nos. 4 and 5, only defendants Nos. 1 and 2 entered appearance and contested the suit. Their case substantially was that the plaintiffs were not the holders of the jote which according to the plaintiffs comprised of the lands covered by Schedule A and B and they had no mourashi right therein but they were the tenants in respect of the lands covered by Schedule A and also of other lands which they held in, the village, that they or rather their father had as a matter of fact abandoned the tenancy without making any arrangement for payment of rent and that thereafter the principal defendants had taken khas possession of the holding and had settled it with the other defendants, namely, defendants Nos. 4 and 5.
4. The learned Munsif dismissed the suit holding that it was governed by Section 27 of Act VIII of 1869 and that inasmuch as the suit had been instituted beyond one year from the date on which the principal defendants had taken possession of the jote, that is to say, April 1914, the suit was barred by limitation.
5. On appeal preferred by the plaintiffs the learned Subordinate Judge decreed the plaintiffs' suit. His findings were that the lands of Schedule A had not been settled with defendants Nos. 4 and 5 by the plaintiffs' father as has been alleged on behalf of the plaintiffs, that the principal defendants, namely, the landlords had never taken khas possession of the said lands, that the plaintiffs' father did not abandon the jote and that, therefore, the principal defendants had no justification in law for settling the disputed lands with the defendants Nos. 4 and 5 after the plaintiffs' father had left the village with his family. The learned Subordinate Judge was of opinion that the law applicable to the case was not the one contained in Section 27 of Act VIII of 1869, but the ordinary Law of Limitation, namely, 12 years from the date of dispossession. In this view of the matter and upon those findings the learned Subordinate Judge has, decreed the plaintiff's suit, the defendants Nos. 1 and 2 have preferred this appeal.
6. In support of the contention put forward on behalf of the appellants reliance has been placed upon certain decisions of this Court notably the decision in the case of Srinath Bhattacharji v. Ram Ratan De 12 C. 606 : Ind. Dec. (N.S.) 412. It is also contended on behalf of the appellants that the rulings referred to by the learned Subordinate Judge have no application whatsoever to a case like the present one.
7. I may say at the outset that the two cases upon which the learned Subordinate Judge relied, namely, the cases reported as Kallida Pershad Dutt v. Ram Hari Chuckerbutty 5 C. 317 : 2 Shome L.R. 251 : 2 Ind. Dec. (N.S.) 813 arid Basarut Ali v. Altaf Hosain 14 C. 624 : 7 Ind. Dec. (N.S.) 414, are clearly distinguishable on the facts and that they have no application to a casel like the present one. So far as the case of Srinath Bhattacharji v. Ram Ratan De 12 C. 606 : Ind. Dec. (N.S.) 412 is concerned it was held in that case by Wilson and Ghose, JJ., that when the plaintiff alleged that he was the holder of a jote under the defendant by whom he had been forcibly dispossessed and sued for a declaration of his title and for restoration to possession; and the defendant did not question the plaintiff's tenure nor his original title, but denied the forcible dispossession and alleged that the plaintiff had relinquished the land, the suit was not one to try a question of title, but was governed by the one year's period of limitation prescribed by Section 27, Bengal Act VIII of 1869. In that case the plaintiff's title; as tenant in respect of the holding from which he had been dispossessed was not questioned on behalf of the defendant. There was no question of title either raised in the suit or decided by the Court except that on the one hand the plaintiff alleged that he had been dispossessed by force and the defendant on the other alleged that the plaintiff had relinquished of his own accord. It is true that the dispossession was in respect of a holding to which the plaintiff claimed title bat in reality no question of title tothe holding arose in the suit. The facts are entirely different from those of the present case. The plaintiff's case in the present suit was that the jote consisted of two plots of land described in Schedule (A) and (B) to the plaint. The defendants' case was that there was no jote in so far as the lands mentioned in the Schedule (B) were concerned, that the plaintiffs were tenants in respect of the lands covered by Schedule (A) and of some other lands. The plaintiffs' jote right, therefore, was undoubtedly denied in the present suit. A question as to the plaintiffs' title did arise in the present suit, a distinct issue, namely, Issue No. 12 was framed and though in view of the other findings arrived at by the Munsif it was not necessary for them to go into that issue, the point was gone into by the lower Appellate Court, and decided in plaintiffs' favour. To such a case Section 27 of Act VIII of 1869 does not apply. Reference in this connection may be made amongst others to the case of Joyunti Dasi v. Mahomed Ally Khan 9 C. 423 : 5 Ind. Dec. (N.S.) 930 in which Mr. Justice Wilson. and Mr. Justice Macpherson held that the limitation provision of Section 27 of the Bengal Act VIII of 1869 had no application to a case in which the plaintiff relied upon his title and sought to recover possession upon the strength of that title and in which the defendant denied that title. In the present case it was not possible for the plaintiffs to recover a decree for possession unless and until they had succeeded in establishing their right to the jote.
8. There is also another case to which I may refer, namely, the Full Bench decision of this Court in the case of Tamiz-ud-din v. Ashrub Ali 31 C. 647 : 9 C.W.N. 446 where Mr. Justice Ghose in concurrence with the other learned Judges who formed the Bench laid down that the summary remedy that was provided for a tenant in Section 27 of Bengal Act VIII of 1869 is what is to be found in Section 9 of the Specific Relief Act for all classes of persons. On no conceivable view of the facts of the present case can it be said that the suit resembles a suit under Section 9 of the Specific Relief Act for recovery of possession.
9. In my opinion the learned Subordinate Judge was, therefore, correct in taking the view that the law applicable was not that contained in Section 27 of Act VIII o 1869 but the general Law of Limitation, namely, 12 years from the date of dispossession.
10. Then, again, there is a further difficulty. The learned Subordinate Judge has distinctly found that the landlords never took khas possession. This finding, if correct, can only mean that even if the plaintiffs be held to have been dispossessed that dispossession was not by or at the instance of the landlords. I am, therefore, of opinion that the decision of the learned Subordinate Judge is correct and that this appeal should be dismissed with costs.
11. I agree.