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Khalil Rahman and ors. Vs. KafiluddIn Dalal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in38Ind.Cas.643
AppellantKhalil Rahman and ors.
RespondentKafiluddIn Dalal
Cases ReferredBudhu Kumar v. Hafiz Hussain
Excerpt:
bengal tenancy act (viii b.c. of 1885), schedule iii, article 3, applicability of, where dispossession took place shortly before its amendment - limitation, special. - .....time. this point is covered by judicial decisions, the decision of this court in the case of budhu kumar v. hafiz hussain 20 ind. cas. 821 : 18 c.l.j. 274 has expressly stated that, notwithstanding the judgment of the judicial committee of the privy council in the case of soni ram v. kanhaiya lal 19 ind. cas 291 : 17 c.w.n. 605 : 11 a.l.j. 389 : 13 m.l.t. 437 : (1913) m.w.n. 470 : 17 c.l.j. 488 : 15 bom. l.r. 489 : 25 m.l.j. 131 : 35 a. 227 : 40 i.a. 74, the rule laid down in the case of manjuri bibi v. akkel mahmud 19 ind. cas. 793 : 17 c.w.n. 889 : 17 c.l.j. 316 is good law and remains unaffected. it may be said that the special bench in the case of gopeshwar pal v. jiban chandra chandra jiban has cast a considerable amount of doubt on the second proposition said to be.....
Judgment:

Fletcher, J.

1. This is an appeal from a decision of the learned District Judge of Noakhali, dated the 26th January 1912, reversing the decision of the Munsif at Hatiya. The plaintiff, who was the purchaser of a raiyati holding from which he had been dispossessed by the defendant, sued to recover possession. The suit was dismissed by the Court of first instance. On appeal, the learned District Judge has reversed that decision. The suit was instituted as long ago as July 1910 and was valued at the sum of Rs. 25. The dispossession, according to the first Court, took place in April 1908. The amendment of the Bengal Tenancy Act by Article 3 of Schedule III came into force in May 1908. If the first Court's finding remains unaffected, it has been argued that the dispossession took place more than two years before the institution of the suit and the suit was, therefore, barred by Article 3 of Schedule III. In the judgment of the learned District Judge, no finding has been made on what date the dispossession took place; but it has been found that it took place recently. Although the learned Judge has given us no idea as to what he means by recently, it cannot be much less than two years, because the plaintiff alleges in his plaint that the dispossession took place, in Sravan 1315, which would be July or August 1908. In that view of the case, two points are open. First of all, if the two years' rule of limitation is to apply under Article 3, Schedule III, it would be essential to have a finding of fact as to on what date the actual dispossession took place; because in any case the dispossession took place, according to the plaintiff and according to the finding made by the first Court, not much on one side or the other of the period of two years. But if the view is that the suit is not governed by the period laid down in Article 3 of Schedule III of the Bengal Tenancy Act but the period of limitation is twelve years then, having regard to the finding of the learned Judge that the dispossession has been recent, the suit was amply within time. This point is covered by judicial decisions, The decision of this Court in the case of Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274 has expressly stated that, notwithstanding the judgment of the Judicial Committee of the Privy Council in the case of Soni Ram v. Kanhaiya Lal 19 Ind. Cas 291 : 17 C.W.N. 605 : 11 A.L.J. 389 : 13 M.L.T. 437 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.R. 489 : 25 M.L.J. 131 : 35 A. 227 : 40 I.A. 74, the rule laid down in the case of Manjuri Bibi v. Akkel Mahmud 19 Ind. Cas. 793 : 17 C.W.N. 889 : 17 C.L.J. 316 is good law and remains unaffected. It may be said that the Special Bench in the case of Gopeshwar Pal v. Jiban Chandra Chandra Jiban has cast a considerable amount of doubt on the second proposition said to be established by Manjuri Bibi's case 19 Ind. Cas. 793 : 17 C.W.N. 889 : 17 C.L.J. 316. But the judgment of the Special Bench did not consider the decision in Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274 and as at present matters stand, the decision in Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274 must be taken as a binding decision in this Court. In that view, unless we are prepared to refer this case to a Full Bench for consideration as to whether the case of Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274 was correctly decided, we are bound by it. We are not bound to refer any particular case to a Full Bench; we may follow a decision of this Court with which we are not in full approval. I think we ought hot to refer a case of this nature, where the litigation is going on practically for seven years for a property valued at Rs. 25 only, for consideration on the point. It will be sufficient for us to say that we follow without expressing any approval the decision in the case of Budhu Kumar v. Hafiz Hussain 20 Ind. Cas. 821 : 18 C.L.J. 274. That being so, the present appeal fails and must be dismissed with costs.

Richardson, J.

2. I agree.


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