1. The plaintiff and certain other persons were the heirs of one Rajabulla. The defendants Nos. 1 and 2 were the co-sharer landlords of the jote which was held by Rajabulla. On the death of the latter, the defendants Nos. 1 and 2 dispossessed the plaintiff from the land, they having secured a kobala of the entire land from defendant No. 8, one of the heirs of Rajabulla.
2. The plaintiff brought a suit for joint possession in respect of his share of the land and the question raised in the case is whether the suit is governed by the provisions of Article 3, Schedule III of the Bengal Tenancy Act.
3. There is a divergence of judicial opinion with respect to the scope of Article 3, Schedule III, and in some cases it has been held that the article is inapplicable to a case where the dispossession is effected by the landlord not as landlord but an auction purchase r and under process of the Court. See Abhoy Churn Mookerjee v. Shaik Titu 2 C.W.N. 175; Brojo Kishore Mahapatra v. Saraswati Dassi 6 C.W.N. 333; Mahomed Khalil v. Hirendra Nath Bhattacharya 5 C.L.J. 650; Kamal Dhari Thakur v. Rameshwar Singh 19 Ind. Cas. 545 : 17 C.W.N. 817; Ram Kinkar v. Sthiti Ram 46 Ind. Cas. 221 : 27 C.W.J. 528.
4. On the other hand a different view has been taken in the following cases Aminuddin Munshi v. Ulfutunnissa Bibi 3 Ind. Cas. 315 : 13 C.W.N. 108 : 9 C.L.J. 131; Fani Bhusan Sarkar v. Pulin Chandra Mandal 35 Ind. Cas. 838 : 21 C.W.N. 976; Satis Chandra Basu v. Nittya Gopal Haldar 40 Ind. Cas. 419 : 21 C.W.N. 978; Pitambar Mahapatra v. Bhagabat Lal 24 Ind. Cas 860 and Kunti Dai v. Jharu Lal Das 40 Ind. Cas. 907 : 2 P.L.J. 567 : 2 P.L.W. 16 : (1917) Pat. 247.
5. Having regard to the difference of opinion on the point, the question was referred to a Pull Bench in Peary Mohan Mukherjee v. Arunodoy Ghose 58 Ind. Cas. 581, but it was held that the question referred did not arise in this case because the dispossession was subsequent to the symbolical possession delivered to the landlord and was made at a time when the plaintiff was in possession as tenant under the landlord. The case sited above, except the case of Kunti Dai v. Jharu Lal Das 40 Ind. Cas. 907 : 2 P.L.J. 567 : 2 P.L.W. 16 : (1917) Pat. 247, were all cases in which the question arose between the plaintiff and the landlord after the latter had purchase d the property at an execution sale. In the present case, there is no question of, an auction-purchase by the landlord.
6. It is contended, however, on behalf of the respondent that the principle laid down in the first get of cases would apply also to a case of a private purchase, because in both cases the purchase is made by the landlord not in his capacity as landlord but as a purchase r; and we have been asked to refer the case to a Fall Bench having regard to the divergence of judicial opinion on the point.
7. We do not think, however, that the matter should be referred to a Full Bench; for the case of a private purchase does not stand on the same footing as a purchase at an execution sale. In the case of Ram Kinkar v. Sthiti Ram 46 Ind. Cas. 221 : 27 C.W.J. 528, already referred to, Mookerji, J., stated: 'It is plain that Article 3 of the Third Schedule to the Bengal Tenancy Act has no application to the case before us. It is well settled that where a landlord in execution of a decree for arrears of rent puts the holding to sale, purchases it himself and obtains delivery through Court, such dispossession of the tenant is not dispossession within the meaning of Article 3 Kamal Dhari Tkahur v. Rameshwar Singh 19 Ind. Cas. 545 : 17 C.W.N. 817. Indeed so long as the sale remains in force, the possession of the landlord auction pnrohaser sannot possibly be challenged by way of suit.' It was also pointed out in the case of Kamal Dhari Thakur v. Rameshwar Singh 19 Ind. Cas. 545 : 17 C.W.N. 817 that although the landlord moves the Court to deliver possession and possession is delivered to him at his instance, he gets possession through the intervention of the Court; 'the delivery of possession by which the dispossession is effected is an Act of the Court, and when the landlord gets into possession by a process of the Court, we do not think it is an Act of dispossession by the landlord within the meaning of the article, which contemplates a dispossession by the landlord by taking the law into his own hands and otherwise than in due course of law.' A similar view was taken by Banerji, J., in the case of Brojo Kishore Mahapatra v. Saraswiti Dassi 6 C.W.N. 333 where the learned Judge says: 'That the dispossession here was in that capacity and under a process of Court issued to put the defendant in possession as auction- purchaser, has in effect been found by the Courts below and is not disputed.' When the landlord purchases at a sale held in execution of a decree, possession is delivered to him by the Court as auction purchaser, i.e., on the footing that there is no longer any relation of landlord and tenant between him and the tenant and the possession of the landlord as purchaser cannot be challenged so long as the sale is not set aside or declared ineffective against the tenans. In the case of a private purchase such as the present, there is a relation of landlord and tenant between the plaintiff and the defendant and the mere fact that he obtained a kobala from one of the him of the original tenant cannot take the case out of the purview of Article 3, Schedule III.
8. Having regard to all these considerations we think that the case does come under Article 3, Schedule III of the Bengal Tenancy Act. The appeal is decreed, and the suit must accordingly be dismissed. The appellant will be entitled to half the costs in all Courts.