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Haran Chandra Barai and ors. Vs. Hari Charan Barai and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in61Ind.Cas.899
AppellantHaran Chandra Barai and ors.
RespondentHari Charan Barai and ors.
Cases ReferredRudra Narain v. Natabar Jana
Excerpt:
bengal tenancy act (viii of 1885), schedule iii, article 3, applicability of--grant of new lease by land, lord in favour of new tenant, whether involves dispossession of old tenant by landlord--suit by old tenant against new tenant to recover possession, whether governed by special rule of limitation--limitation. - .....had been established and that the special rule of limitation was not applicable, inasmuch as the dispossession was not by the landlord. on second appeal to this court, mr. justice newbould has reversed that decision and has restored the decree of the primary court. he has held that as the defendants had obtained a settlement from the landlord, the dispossession must be taken to be an act of the landlord, and that, in this view, the special rule of limitation is applicable, we are of opinion that this conclusion cannot possibly be supported.4. article 3 of schedule iii to the bengal tenancy act provides that a suit to recover possession of land claimed by the plaintiff as a raiyat or an under raiyat must be instituted within two years from the date of dispossession. it will be noticed.....
Judgment:

Asutosh Mookerjee, Acting C.J.

1 This is an appeal, under Clause 15 of the Letters Patent, from the judgment of Mr. Justine Newbould in a suit for recovery of possession of land on declaration of title.

2. The plaintiffs claimed to recover possession of the disputed land, on the allegation that they were in possession as occupancy raiyats and wrongfully dispossessed by the defendants. The defendants denied the title of the plaintiffs and alleged that the land was in the occupation of the landlord, who settled it with them. They also pleaded that the suit was barred under Article 3 of the Third Schedule to the Bengal Tenancy Act. The Court of first instance dismissed the suit as barred by limitation.

3. Upon appeal the Subordinate Judge held that the alleged title of the plaintiffs had been established and that the special rule of limitation was not applicable, inasmuch as the dispossession was not by the landlord. On second appeal to this Court, Mr. Justice Newbould has reversed that decision and has restored the decree of the primary Court. He has held that as the defendants had obtained a settlement from the landlord, the dispossession must be taken to be an act of the landlord, and that, in this view, the special rule of limitation is applicable, We are of opinion that this conclusion cannot possibly be supported.

4. Article 3 of Schedule III to the Bengal Tenancy Act provides that a suit to recover possession of land claimed by the plaintiff as a raiyat or an under raiyat must be instituted within two years from the date of dispossession. It will be noticed that the third column of this Article does not specify the person by whom the dispossession had been made, but it is clear that as this provision is found in a Statute whish amends and consolidates enactments relating to the Law of Landlord and Tenant, the Article can be made applicable Only where the dispossession has been effected by the landlord. On first principles, it further follows that the Article also applies where the dispossession has been effected, not by the landlord personally, but by an agent acting within the scope of his authority.

5. On behalf of the respondents, it has been contended that this view is inconsistent with the decisions in Chintamoni Sahu v. Upendra Nath 4 C.W.N. 326. Bheka Singh v. Nakchhed Singh 24 C. 40 : 12 Ind. Dec. (N.S.) 692, Rakhit Mahania v. Puddo Bauri 35 Ind. Cas. 838 : 21 C.W.N. 976 and others. The position has been sought to be maintained before us that the grant of a lease by a landlord to a new tenant necessarily involved is possession by the landlord, although the actual ouster may have been effected by the lessee, In our opinion, this view is not supported by the decisions that have been mentioned. In the case of Chintamoni Sahu v. Upendra Nath 4 C.W.N. 326, it appears that the defendants, who were under tenants in occupation of the land, had been inducted into the land by the agents of the landlord. This clearly show that the dispossession was an Act of the landlord. In the case of Bheka Singh v. Nakchhed Singh 24 C. 40 : 12 Ind. Dec. (N.S.) 692, it appears that the landlord himself was a party to the litigation, and the finding of the Court was that the dispossession had been effected by the servants of the landlord. Consequently, this decision only shows that the Article applies to cases where the Act is of the landlord himself or of a person who has acted under his authority. In Rakhit Mahanta v. Puddo Bauri 9 C.W.N. 54, the landlord was a party to the suit, and it is stated that he had employed the new tenants to dispossess the plaintiffs. These decisions, consequently, do not support the contention of the respondents. On the other hand, the decision of the Full Bench in Ranijulla v. Ishab Dhali 29 C. 610 (F.B.) : 6 C.W.N. 702 shows that the grant of a lease by the landlord is not equivalent to the landlord having a band in the ouster. We observe that the Fall Bench overruled the earlier decision in Hara Kumar Nath v. Sheikh Nosaruddin 4 C.W.N. 665, where it had been held that if a landlord recognised the dispossessor, after the dispossession had been effected, the dispossession might be treated as an Act of the landlord. It was pointed out that snob retrospective effect could not be given to the recognition by the landlord.

6. Reliance has also been placed on behalf of the respondents upon the decision in Aminuddin Munshi v. Ulfutunnissa Bibi 3 Ind. Cas. 315 : 13 C.W.N. 108 : 9 C.L.J. 131, which was followed in Want Bhutan Sarkar v. Pulin Chandra Mandal 35 Ind. Cas. 838 : 21 C.W.N. 976 and Natis Chandra Basu v. Nittya Gopal Haldar 40 Ind. Cas. 419 : 21 C.W.N. 978. These cases, however, are distinguishable. There the question for consideration was whether a landlord, who has purchased a holding, in execution of a decree for rent and as purchaser has taken possession of the holding, is to be treated as landlord or as execution purchaser; in other words, the question was, if a landlord had an additional capacity, namely, that of execution purchaser, what should be regarded as his governing Statute. It was ruled in the three cases mentioned that the dispossession in such an event should be considered as an Act of the dispossessor in his character as landlord. Upon this point, the cases do not Jay down a uniform rule Abhoy Churn Mookerjee v. Sheik Titu 2 C.W.N. 175, Brojo Kishore Mahapatta v. Saraswati Dassi 6 C.W.N. 333, Mahomed Khalil v. Hirendra Nath Bhattacharya 5 C.L.J. 650. But, in any event, that principle obviously cannot apply to the circumstances of the present case. It may further be pointed out that the decision in Durgapada Panja v. Bhusan Chandra Ghose 39 Ind. Cas. 383 : 21 C.W.N. 373 shows that the view sot out above is open to comment and consideration; there the purchaser was not the landlord himself but a stranger, and the contention that the person who had purchased at the instance of the landlord was entitled to the same privileges as the landlord himself, was overruled by this Court. These decisions then are of no assistance to the respondents and they have to fall back upon the words of the Statute, Those words have to be strictly construed, as repeatedly pointed out in resent decisions of this Court, which disapprove of the extension of the principle of constructive dispossession. Sonatan Sheikh v. Chaku Sheikh 3 Ind. Cas. 398 : 10 C.L.J. 89, Basanta Kumari v. Nanda Ram 20 Ind. Cas. 350 : 18 C.L.J. 86 : 17 C.W.N. 1149, Kedar Nath Mondal v. Mohesh Chandra Khan 46 Ind. Cas. 787 : 28 C.L.J. 216, Panchoo Kapali v. Jajneswar Marhi 58 Ind. Cas. 844 : 32 C.L.J. 9, Rudra Narain v. Natabar Jana 21 Ind. Cas. 431 : 18 C.L.J. 89 : 41 C. 52 : 18 C.W.N. 353. What then is the position of the defendants? They have no doubt obtained a settlement from the landlord, but it is not found that they were authorized by the landlord to oust the plaintiffs. Indeed, that was not and could not be their ease. Their allegation was that the plaintiffs had no title and were never in possession. Consequently, they could not set up the theory that the plaintiffs were in possession lawfully, and that the defendants were granted a settlement by the landlord with the object of turning them out of possession. There is thus no room for the application of Article 3 of Schedule III to the Bengal Tenancy Act. The Subordinate Judge rightly held under the circumstances that the suit was governed by the twelve years' rule of limitation, and his judgment should not have been reversed by this Court.

7. The result is that this appeal is allowed, the decree made by Mr. Justice Newboald set aside and that of the Subordinate Judge restored with costs both here and before Mr. Justice Newbould.

Fletcher, J.

8. I agree.


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