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Kedar Nath Biswas Vs. Kamini Sundari Dassya and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in78Ind.Cas.514
AppellantKedar Nath Biswas
RespondentKamini Sundari Dassya and ors.
Cases ReferredBudra Narain Maity v. Natabar Jana
Excerpt:
bengal tenancy act (viii of 1885), schedule iii, article 3 - landlord and tenant-suit by tenant to recover possession of holding--dispossession by landlord--limitation. - .....and held that the suit was barred by limitation. the learned munsif does not say on which date the dispossession took place but reading the whole judgment it appeare that he was of opinion that the plaintiff was dispossessed from the disputed land in 1913 by virtue of the delivery of possession to the defendants nos. 1 and 2 in execution of the rent-decree against defendant no. 4, the lower appellate court has not found as to when the dispossession took place; but it disposes of the issue,' is the suit barred by limitation ' in these words: 'in view of the ruling reported in kamaldhari thakur v. bameshwar singh bahadur 19 ind. cas. 545 : 17 c.w.n. 817 the suit is not time barred.' i think what he means to say is that, because the dispossession was by the defendant in 1913 as purchaser in.....
Judgment:

Suhrawardy, J.

1. In this appeal the point involved is whether, on the findings of the Courts below, the plaintiff's suit is barred by two years limitation under Article 3 of Schedule III of the Bengal Tenancy Act. The facts are that defendant No. 2 who is the appellant was the landlord in respect of a certain holding which was jointly held by two brothers Sita Nath and Dwarka Nath Sita Nath died leaving plaintiff as his widow on whom dovolved his one-half share. The plaintiff's case is that she purchased the other one-half of Dwarka Nath and thus became entitled to the 16 annas share of the holding. The defendant's case is that in respect of the eastern half of this holding Dwarka Nath was the sole tenant and after his death the defendant No. 4 succeeded him as a tenant; but as defendant No. 4 did not pay the rent in respect of the eastern half of the holding, the defendants Nos. 1 and 2, being the landlords, brought a suit for rent, obtained a decree, purchased the land in execution of the same and obtained delivery of possession through Court on the 8th December, 1913; The lower Appellate Court has found that the defendant's decree against the defendant No. 4 and the sale in execution thereof were fraudulent and collusive. It was the case of the plaintiff and it has been found by the Courts below that the plaintiff was all along the tenant of the defendant Nos. 1 and 2 in respect of the land in dispute and that the decree against defendant No 4 and the sale there under did not affect the plaintiff's title. The plaintiff alleged that she was dispossessed in 1325 by a certain act of the landlords. The first Court disbelieved the evidence on that point and found that she was dispossessed by her landlords (defendants Nos. 1 and 2) more than two years before the institution of the suit and held that the suit was barred by limitation. The learned Munsif does not say on which date the dispossession took place but reading the whole judgment it appeare that he was of opinion that the plaintiff was dispossessed from the disputed land in 1913 by virtue of the delivery of possession to the defendants Nos. 1 and 2 in execution of the rent-decree against defendant No. 4, The lower Appellate Court has not found as to when the dispossession took place; but it disposes of the issue,' Is the suit barred by limitation ' in these words: 'In view of the ruling reported in Kamaldhari Thakur v. Bameshwar Singh Bahadur 19 Ind. Cas. 545 : 17 C.W.N. 817 the suit is not time barred.' I think what he means to say is that, because the dispossession was by the defendant in 1913 as purchaser in execution-sale, it was not dispossession by him as landlord and so two years' bar of limitation did not apply to the facts of this case and, therefore, the plaintiff's suit was not barred by limitation.

2. On this question as to whether the dispossession under Article 3 of Schedule III of the Bengal Tenancy Act should be dispossession by a person as landlord and not in another capacity though he happened to be a landlord had been the subject of consideration in a large number of cases and there has been a wide divergence of judicial opinion. All the cases on this point have been collected in the Case of Babin Chandra Shaha v. Shaih Wajid 58 Ind. Cas. 598 : 31 C.L.J. 199 : 24 C.W.N. 382 and in the well-known edition of the Bengal Tenancy Act by Mr. Surendra Chandra Sen whose assistance we had in this case, appearing as he did for the appellant at pp. 856 and 858. It is not necessary for us to refer to those cases nor do we feel called upon, in the particular facts of this case, to refer the matter to a Full Bench as we have been invited to do by the learned Vakil for the respondent. The facts of this case are of a peculiar nature. It has been found and it is the case of the plaintiff, that the relationship of the landlord and tenant between the defendant and the plaintiff continued down to the date of the suit and I take it that it still continues. At the time when the sale in 1913 took place and delivery of possession was given to the defendant through Court, he was on that date occupying the position of a landlord in respect of the plaintiff. The collusive decree that was obtained against defendant No. 4 did not put an end to that relationship and it is on the basis of that relationship that the plaintiff now comes to Court and demands restitution of the property of which she was dispossessed. I need not consider the question as to what would have been the effeot if the rent decree were against the plaintiff and the dispossession had taken piaoe by the defendant as purohaser in execution of that decree. I may only mention that the ratio of some of the decisions of the class of the catfe of Kamaldhari Ukahm v. Rameshwar Singh Bahadur 19 Ind. Cas. 545 : 17 C.W.N. 817 is, that the landlord having ceased to be a landlord by purchasing the holding himself in execution of this decree, he subsequently obtained delivery of possession through Court and thereby dispossessed the tenant not as a landlord but as an auction-purchaser. But here, as I have said, the dispossession was by the defendant when he was holding the character of a landlord in relation to the plaintiff. If we look at it from another point of view it appears that the plaintiff was dispossessed on the 8th December 1913 from the holding as a tenant in respect of the holding. In my judgment, Article 3 applies to a case where dispossession has been by a person who at the time of dispossession, in whatever way the dispossession might take place either through a civil wrong or by means of criminal force, occupies the position of a landlord or possesses the character of a landlord and had the capacity of the landlord, the dispossession must be taken to have been effected by the landlord. In this view of the finding of the lower Appellate Court, I think that Article 3 is not applicable to -the facts of this case and the plaintiff's suit is barred by limitation.

3. The result is that this appeal is allowed, the decree of the lower appellate Court is set aside and that of the Court of first instance restored with costs.

Page, J.

4. I am of the same opinion. The question in this appeal is whether or not the plaintiff's suit is barred by limitation. The material Article is Article 3 of Schedule III cf the Bengal Tenancy Act, which provides that a suit by a plaintiff as a rayat, (which was the capacity in which the plaintiff launched the proceedings in this suit) to recover possession of land must be brought within two years, from the date when the plaintiff was dispossessed of the land. It is well-settled that dispossession must be by a landlord. I desire to adopt the observation of Jenkins, C.J., in the case of Budra Narain Maity v. Natabar Jana 21 Ind. Cas. 481 : 410. 52 : 18 C.L.J. 89 : 18 C.W.N. 868. Referring to Article 3 His Lordship says: 'this is an Article, which, after a lapse of a certain time, deprives the plaintiff of his right to come to Court for the purpose of vindicating a claim which is his and, therefore, it must be clearly made out that any particular case falls within its terms. We recently bad ocbasion to enter a protest against extending the terms of this Article by use of figures of speech and metaphors. What we have to see in each case is whether in fact there has been such dispossession as the Article requires. That dispossession, it is conceded, must be by the landlord.' There are two findings of f act in this case to which I must refer. The first is that the plaintiff was dispossessed of the premises more than two years before she launched the present suit, and the second finding is that, at the time when she was dispossessed and up till the date when the suit was instituted, she was in fact the tenant of the defendants Nos. 1 and 2. In my opinion these two findings of fact are sufficient to enable us to dispose of theft appeal. Upon these facts Article 3 will bar the claim of the plaintiff. But it is contended that Article 3 does not apply because the defendant No. 2 had obtained a decree for possession against some other person on the ground that such other person was his tenant, and that he obtained possession under that decree. The Court below has found, however, that that proceeding was a fraudulent and collusive proceeding between the parties to it. The plaintiff was not impleaded in that suit and she was not barred by the decree passed in it. In my opinion, the fact that the defendant, in collusion which a third person, obtained possession of these premises by fraud does not affect the position of the plaintiff. The find-ding of fact that at the time of dispossession the plaintiff was the tenant of the defendants Nos. 1 and 2 brings into operation Article 3 of Schedule III of the Bengal Tenancy Act notwithstanding the fraudulent device to which the defendant No. 2 resorted in order to obtain possession. The determination of the question depended upon this finding of fact and in my opinion this appeal should be allowed.


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