1. Two points have been pressed by the appellants in this appeal first that the Courts below have admitted certain documents which are not admissible in evidence in support of the plaintiffs' title and, secondly that the Courts below should have found that the plaintiffs' suit was barred under Article 3, Schedule 3 to the Bengal Tenancy Act. The facts are that the holding in suit belonged to defendants 1 to 4 in their raiyati right. It was mortgaged with the plaintiff in 1910. He brought a suit upon the mortgage and purchased it in execution of the mortgage decree in March 1923. The present suit was filed in September 1923 for possession of a plot of land which according to the plaintiff formed part of the raiyati of defendants 1 to and according to the contesting defendants was within their jote in which they had a fractional maliki right. Both the Courts have decreed the plaintiff's suit and defendants 5 to 8 appeal.
2. With regard to the first ground the lower appellate Court has relied upon three documents relating to neighbouring plots in which the boundaries described are in favour of the plaintiff. They are Exs. 5, 2 and 7. As regards Ex. 2, the objection is not pressed. Ex. 5 is a kabala executed in 1309 in favour of the appellants. The land covered by this kabala lies to the West of the disputed land. This document is admissible inasmuch as it shows that the appellants accepted the description of the boundary as correct as their conduct. It can be proved as inconsistent with the fact in issue in this case. Ex. 7 is a kobala executed in favour of one Jadub Chandra Saha by the former owner in respect of the land immediately to the north of the disputed land in which the boundary mentioned was as Brindaban's Palan Brindaban being one of the mortgagors. This Jadub Chandra Saha has been examined in this case and he has proved the kabala and the correctness of the boundaries therein, so no objection can be taken to this document. Ketabuddi v. Nafar Chandra : AIR1927Cal230 . We accordingly think that there is no error of law committed by the Court below in admitting these documents in finding title with the plaintiff's mortgagor.
3. The next question relating to limitation is one of some difficulty which has arisen due to the findings of the lower appellate Court which are not very clear. The appellants alleged in their written statement that they were in possession of this land as included within their jote and in their maliki right. The Court of first instance disposed of the objection on the ground of special limitation by observing that the appellants were fractional maliks and therefore Article 3, Schedule 3 to the Bengal Tenancy Act did not apply. This view has not been attempted to be supported before us by the respondent. Article 3 does not speak of dispossession by the landlord. It prescribes the period of two years within which a suit by a raiyat or an under raiyat must be brought for recovery of his holding. But the cases have interpreted it to mean that as the Bengal Tenancy Act is an enactment relating to the relationship between the landlord and tenant the suit in which that article applies must be a suit by the tenant against his landlord. There is nothing in the law to show that such a suit must be against the entire body of landlords. The lower appellate Court however has based its decision upon a different ground. The settlement operation in this case began in 1909. The Record-of-Rights was published some time after (but we have not got the exact date) which shows that the appellants were in possession of this disputed land in their jote right. If that entry be accepted as correct the suit of the plaintiff will be barred by adverse possession under the Limitation Act. But the learned Subordinate Judge thinks that the entry in the Record-of-Rights was the result of collusion between the appellants and defendants 1 to 4. He presumes that the entry was made evidently in 1316 after the execution of the mortgage. We do not know upon what materials he has based his opinion but if the entry was made in 1316 it might have been made before the execution of the mortgage which was executed in Falgun 1316. The learned Subordinate Judge records his finding in these words:
I am satisfied that the entry was made after the execution the mortgage with, the object I have already stated. So the entry of the appellants into the land was not ad verse-either to defendants 1 to 4 or the plaintiff or the appellants did not set up a hostile title openly... I am also inclined to accept the evidence of the plaintiffs' witnesses that the appellants began to possess the land 8 or 9 years before the institution of the suit.
4. The Subordinate Judge probably means to hold that the entry of the appellants into the land was due to the collusion between them and defendants 1 to 4 and therefore there was no dispossession by the appellants as maliks within the meaning of Article 3. But this idea if it was in his mind has not been conveyed in clear language. He has not considered the various points which may be urged in this connexion.
5. If the entry in the Record-of-Rights was due to the collusion between the appellants and the mortgagors in order to defraud the plaintiff why was actual possession postponed for 5 or 6 years. He has not found in so many words that the possession which the appellants obtained 8 or 9 years ago was also due to collusion between them and the mortgagors. The sentence from the judgment which we have quoted shows that his idea was that because the entry in the Record-of-Rights was collusive, the entry of the defendants into the land was permissive. But this he has not expressed in so many words and we are unable to say that this finding has been arrived at on a consideration of all the circumstances in the case. The land in dispute forms a small portion of the holding which has been purchased by the plaintiff. The result appears to be that no reason has been given by the Courts below to hold that with respect to this small portion only there was collusion between the appellants and the mortgagors in order to defraud the plaintiff. Then there is the other fact which we have already indicated that there is no reason given by the Courts below for holding that the collusive entry in the Record-of-Rights was made 14 years before the institution of the suit but the appellants actually came into possession of this piece of land 8 or 9 years before the suit. We do not think that the finding of the lower Court is so clear as to induce us to hold that Article 3, Schedule 3 to the Bengal Tenancy Act does not apply to this case. In our opinion the judgment of the lower appellate Court should be set aside and the case remanded to that Court for a clear finding on the question of special limitation raised all other points having been taken to be settled by the concurrent findings of the Courts below.
6. The learned Subordinute Judge has also expressed an opinion that the dispossession of the mortgagee having commenced after the date of the mortgage time should not run against him. This is a correct principle where the Limitation Act has to be applied. But Article 3 is a special provision of limitation enacted for the benefit of the landlord and the general principle stated above cannot be held to be applicable in a case like this. If it is allowed to prevail the result will be that a tenant out of possession is unable to recover possession of a holding from the landlord after the lapse of two years but his mortgagee is entitled to do so within 12 years of dispossession. The idea which apparently induced the legislature to enact the special provision of limitation in the Tenancy Act was to benefit the landlord by enabling him to give security of his right to let out the land of the old tenant who does not claim to be reinstated within two years from dispossession. It was also intended to settle, dispute between landlord and tenant as specially as possible. The plaintiff as mortgagees of a nonoccupancy raiyat has no higher right than the raiyat himself even though the dispossession might have taken place after the mortgage. The result is that this appeal is allowed the decree of the lower appellate Court set aside and the case remitted to that Court for a rehearing of the appeal on the question of limitation raised. Costs will abide the result.