Kulwant Sahay, J.This appeal has been referred to a Pull Bench for a consideration of the question whether the suit was barred by the two years rule of limitation under Schedule 3, Article 3, Ben. Ten. Act. As the question arises in second appeal the whole appeal is before this Bench.

2. The facts are shortly these: Two brothers, Daryao and Sumran were the owners of a holding. They died leaving several sons and grandsons. In 1918, defendant 1 party, who was the landlord of the holding, instituted a suit for arrears of rent. In this suit, Chhabu, one of the sons of Daryao, and Jagan and Matuki, the two sons of Sumran, were impleaded as defendants. Another son of Daryao, named Bansi who was adult and appears to have been the karta of the family, was not impleaded in the suit, nor were the sons of the other sons of Daryao and the sons of Kokai the third son of Sumran impleaded. The landlord obtained a decree in his suit and in execution thereof sold the holding and purchased it himself.

3. The present suit was instituted by the grandsons of Daryao and Sumran and by Bansi, who were not made parties in the rent suit, for a declaration that their interest in the holding was not affected by the execution sale, and for recovery of possession thereof. The trial Court decreed the suit for possession of a 7 annas 8 pies share in the holding. On appeal the learned District Judge has upheld the decree of the Munsiff with a slight modification to the effect that the share to which the plaintiffs were entitled was eight annas eight pies and not seven annas eight pies. The defendant first party had taken the plea of limitation, and this was one of the issues in the suit. The learned Munsiff had held that as the suit was instituted within twelve years from the date of delivery of possession it was not barred by limitation.

4. The two years period of limitation under Article 3, Schedule 3, Ben. Ten. Act does not appear to have been urged by the defendant before the Munsiff. When the matter came before the District Judge, it appears that it was urged before him that the period of limitation was one year under Article 12, Lim. Act and not 12 years under Article 142. The learned District Judge held that Article 12 did not apply, but; that Article 142 applied. After disposing of this argument of defendant 1 the learned District Judge observed as follows:

I have considered although the point has not been raised in argument before me, whether the suit does not fall under Article 3, Schedule 3, Ben. Ten. Act.

5. He referred to the decision of the Calcutta High Court in Abhoy Churn Mookerjee v. Shaik Titu 2 C.W.N. 175 and held that, as the landlord in dispossessing the plaintiffs was acting not in his capacity as landlord but as the representative of the co-tenants whom he had sued, special period of limitation under Article 3, Schedule 3 did not apply.

6. In this appeal by the defendant landlord the only point argued is that the special period of limitation under Article 3, Schedule 3, did apply. The question appears to be concluded by a long series of authority.

7. So far back as the year 1897 it was held by a Division Bench of the Calcutta High Court in the case of Abhoy Churn Mukerjee v. Shaik Tilu 2 C.W.N. 175 referred to by the learned District Judge that the special period of limitation did not apply to a suit where the landlord had dispossessed the raiyat as purchaser of the holding in execution, of decree for rent. OKinealy and Hill, JJ. put it on the ground that the landlord claimed to be in possession as representative of the persons whose right, title and interest he had purchased. He was, therefore, only there by virtue of his purchase and that, therefore, the suit was not one which fell within the Bengal Tenancy Act, which applies to a case where a tenant has boon dispossessed by his landlord. The question was again raised in the year 1901 in Brojo Kishore Mahapatra v. Saraswati Dassi 6 C.W.N. 333 in which Maclean, C.J., and Banerjee, J, followed the decision in Abhoy Churn Mookerjee v. Shaik Titu 2 C.W.N. 175. Banerjee, J. in dealing with the question pointed out that the contention that the article of the Bengal Tenancy Act did apply was:

opposed to the limitation imposed upon the provisions of the Act by the preamble to it which says the Act is intended to amend and consolidate certain enactments relating to the law of landlord and tenant.

He further observed as follows:

I would, however, observe that if the article applies, as I think it does, only to suits as between landlord and tenant, it would not be right to hold that it is applicable to a suit where the dispossession is by the defendant acting, not as landlord, but expressly in a different capacity, namely, that of auction purchaser of the right, title and interest of a tenant at a sale held in execution of a rent decree obtained by him as a cosharer land lord.

8. The question was again raised in the year 1906 in Mahmed Khalil v. Hirendra Nath Bhattacharya [1906] 5 C.L.J. 650 where a fractional landlord had purchased a holding in execution of a decree for rent obtained by another cosharer landlord, and as such auction purchaser dispossessed the plaintiff raiyat; and it was held that the dispossession by the fractional landlord was not as landlord but as a purchaser and, therefore, the special limitation under Article 3, Schedule 3, did not apply, and reliance was placed upon the rulings in the cases of Abhoy Churn Mookerjee v. Shaik Titu 2 C.W.N. 175 and Brojo Kishore Mahapatra v. Saraswati Dassi 6 C.W.N 333. In 1913 in Kamaldhari Thakur v. Rameshur Singh Bahadur 17 C.W.N. 817 the same question was again raised, and D. Chatterjee and N.E. Chatterjee, JJ., gave two reasons for holding that the two years rule of limitation did not apply. The first reason was, that the landlord had obtained possession not as a landlord but as a purchaser at a sale held in execution of a decree, and reliance was placed upon the three cases above referred to. The second reason given was that the dispossession effected by the act of delivery of possession by the Court is not dispossession by the landlord within the meaning of Article 3 Schedule 3 of the Act, and the Judges observed that the landlord as purchaser moves the Court to deliver possession bat ho 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, it is not an act of dispossession by the landlord within the morning of the article, which contemplates a dispossession by the landlord by taking the law into his own hands or otherwise than in due course of law.

9. Therefore, from 1897 to 1913 there was a consensus of decisions to the effect that Article 3, Schedule 3, Ben. Ton. Act, did not apply to the case of a dispossession by a landlord acting as an auction purchaser.

10. In 1914, a different view was taken by Fletcher and Richardson, JJ., in Pitambar Mahapatra v. Bhagabat Lal [1914] 24 I.C. 860 and it was hold that Article 3, Schedule 3, Ben. Ten. Act, applies even where the landlord purchasing at a rent sale in the name of another person takes forcible possession of the holding and ousts the raiyat. Reference in this case was made to the decision of the Calcutta High Court in Aminudin Munshi v. Ultufunnissa Bibi 13 C.W.N. 108. The facts of this case were, however, as follows: The original tenant was one Ramizeddi who died leaving a widow, five daughters and two sons. A rent suit was brought against the two sons only, leaving out the widow and the daughters. A decree was obtained, and in execution therefore the holding was sold and purchased by a third person (not by the landlord). The auction purchaser dispossessed the widow and the daughters who instituted a suit for possession. The Munsiff decreed the suit; but the Subordinate Judge dismissed it on the ground that it was barred by two years limitation. The matter came in appeal to the Calcutta High Court and was heard by Brett, J. sitting singly. He held that Article 3 had no application as the dispossession was by to purchaser who was a third party and not the landlord. There was a Letters Patent appeal against the decision of Brett, J., and it came on for hearing before Rampini, C.J. and Doss, J. Their Lordships in Letters Patent appeal held, that the landlord and the auction-purchaser must be held to be acting in collusion in the act of dispossessing the plaintiffs and that it was not the auction-purchaser who alone had dispossessed the plaintiff, and therefore the rule of limitation of two years applied. With very great respect to the learned Judges I am unable to follow the reasoning. The dispossession there was by a third person who happened to be the purchaser in execution of a rent decree, and it cannot be said that the purchaser in dispossessing the raiyats was acting in collusion with the landlord and that the dispossession was really the act of he landlord. This case was dissented from in the case of Kamaldhari Thakur v. Rameshur Singh 17 C.W.N. 817, but it was followed by Fletcher and Richardson, JJ., in the casa of Pitambar Mahapatra v. Bhagabat Lal [1914] 24 I.C. 860. In Ram Kinkar Tewari v. Sthiti Ram Panja [1917] Cri.L.J. 528 Mookerjee and Walmsley., JJ., held that it was 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, and reliance was placed upon the decision in Kamaldhari Thakur v. Rameshur Singh 17 C.W.N. 817. The question again came for consideration before Teunon and Sheepshanks, JJ., in Durgapada Punja v. Bhusan Chandra Ghosh 21 C.W.N. 373 and reliance was again placed on the decision in Kamaldhari Thakur v. Rameshur Singh 17 C.W.N. 817 ; and it was held that the two years rule of limitation did not apply to the dispossession by the landlord as auction-purchaser. This decision was given in the month of May 1916, and in July following the question again arose in Fani Bhusan Sarkar v. Pulin Chandra Mandal 21 C.W.N. 976. This case was decided by Fletcher and Teunon, JJ., and the case of Aminuddin Munshi v. Ulfutunnissa Bibi 13 C.W.N. 108 was again followed and it was held that Article 3, Schedule 3, did apply to the dispossession by the landlord as auction purchaser, and the same view was taken by Fletcher, J., sitting with Newbould, J., in Satish Chandra v. Nittya Gopal Haider 21 C.W.N. 978.

11. It will thug appear that from 1897 to 1913 the Calcutta High Court had always taken the view that the two years limitation did not apply when the dispossession was by the landlord as an auction purchaser. A contrary view was taken for the first time in 1914 by Fletcher and Richardson, JJ., but the former view was again adopted in 1916 in which year, however, in two oases which came before Fletcher and Teunon, JJ., and Fletcher and Newbould, JJ., the opposite view was again taken. The preponderance of the decisions is, however, in favour of the view that Article 3, Schedule 3, has no application.

12. In a recent decision of the Calcutta High Court in Satis Chandra Bandopadhya and Others Vs. Hashem Ali Kazi and Others, the holding was purchased by the landlord in execution of a decree and symbolical possession of the land was delivered to him by Court. The actual ouster, however, took place on a later date; and it was held that the ouster was by the landlord and, therefore, the two years rule of limitation applied. Rankin, C.J., in the course of his judgment observed as follows:

It is therefore not a case of ouster by the machinery of a Court of law and although I agree with Page, J., in the opinion that the moaning of dispossession is satisfied when the defendant landlord tomes in against the will of the occupying tenant even by the machinery of a Court of law, the present case does not actually require us to decide that question.

13. The question therefore was not expressly decided although the observations made in the course of the judgment go to support the contention that the two years rule of limitation would apply even when the dispossession was by the landlord as purchaser.

14. I now turn to the decisions of the Patna High Court. In Jaimangalabati Misrain v. Jharu Lal Das [1917] 2 Pat. L.J. 567 the dispossession was by the landlord on the allegation that the land was her kamat land and the contention raised was that she had effected the dispossession of the raiyat not as a raiyat but as a person who had no right to the land; and Chamier, C.J., observed:

I am not prepared to place such a narrow construction on Article 3. It appears to me that if it is shown that tin plaintiff raiyat is in fact a tenant of the defendant who dispossessed him, in respect of the land claimed in the suit, then Article 3 applies to the suit.

15. It was contended before his Lordship that the two years rule of limitation, did not apply on the principle laid down in Kamaldhari Thakur v. Rameshur Singh 17 C.W.N. 817 and in dealing with the contention his Lordship observed as follows:

It has been held in several cases in the Calcutta High Court that where a landlord buys a raiyats holding and a>s purchaser of the raiyati interest dispossesses that or another raiyat, Article 3 does not apply to a suit by the dispossessed raiyat to recover his holding: see Kamaldhari Thakur v. Rameshur Singh 17 C.W.N. 817 and cases there cited and some of the language used in the judgments in these cases supports the contention of the respondents in the cases now before us. But the actual decisions in those cases do not cover the present case and I am not prepared to extend those decisions to the present cases.

Mullick, J., who delivered a separate judgment observed as follows:

With regard to that class of cases which have sought to exclude from the operation of Schedule 3 ouster by a landlord acting under the authority of a civil Court decree and in the capacity of an auction purchaser the principle on which they may be distinguished is that the facts in each of those cases show that the tenancy was at an end and that there was no relationship of landlord and tenant at the time of the ouster.

16. Their Lordships, therefore, did not dissent from the view that the two years rule of limitation did not apply if the dispossession was effected by the the landlord as an auction purchaser. Chamier, C.J., and Mullick, J., followed their own decision in Gowher Ali v. Enayat Ali [1917] 2 Pat. 45. The question was directly raised in Mahadeo Rao v. Pargash Rai AIR 1927 Pat. 43 and Kamaldhari Thakur v. Rameshur Singh 17 C.W.N. 817 was followed; and I adhere to the view which I expressed in this case.

17. It follows, therefore, that the weight of authority is clearly in favour of the view that Article 3, Schedule 3, Ben. Ten. Act, does not apply if the dispossession is by the landlord as an auction purchaser of the holding.

18. It has been contended on behalf of the respondents that the plea of special limition of two years was not raised by the defendant either in his written statement or during the trial of the suit in the trial Court or in his arguments before the District Judge and the learned District Judge had for the first time in the course of his judgment referred to the question whether the suit was barred by two years limitation, and that it was not open to the appellant in the present appeal to raise this question, as the special rule of limitation must be specifically pleaded ; and reliance has been placed upon Kedar Nath Mondal v. Mohesa Chandra Khan [1918] 28 Cri.L.J. 216 and Bhadai Sahu v. Manowar Ali [1919] 4 Pat. 645. It is true that the special limitation of two years under Article 3, Schedule 3, Ben. Ten. Act, was not pleaded by the defendant in his written statement, nor was the question raised before the Munsiff during the trial.

19. A general plea of limitation, however, was taken in the written statement and an issue was framed. In Kedar Nath Mondal v. Mohesh Chandra Khan [1918] CriLJ 216 the decision turned on the special facts of that case. In that case the defendants had set up the case that the plaintiffs had never been in possession, and, it was observed that having set up such a ease they could not possibly with any chance of success set up an absolutely contradictory case that although the plaintiffs had never been in possession they were dispossessed by the defendants acting as landlord. It was further observed that inasmuch as that case had not been especially pleaded and the facts not being apparent on the face of the record, the Judge had no jurisdiction to go into the matter and inquire whether on certain facts that ho had found the suit was barred; and the learned Judges held that the Court below could not by arriving at certain conclusions of fact deprive the plaintiff of the right to have the issue properly tried, namely, to have an issue framed and evidence adduced in support of the plaintiffs case and also to have the defendants evidence in support of their case. In view of these facts the learned Judges were of opinion that the plaintiffs must have been taken by surprise. In Bhadai Sahu v. Manowar Ali [1919] 4 Pat. 645 in dealing with the question of limitation the learned Judges observed that the plea of limitation, in the form it was taken before their Lordships was never taken in the Court of the Munsiff or in the Court of the Subordinate Judge, and they said:

Now our rule is that if a point of law requires a finding of Each for its determination we cannot allow it to be entertained in second appeal in this Court.

20. The two decisions, therefore, relied upon by the learned advocate for the respondents proceeded on the principle that if the decision on the question of limitation depended upon findings of fact which had not been arrived at or in respect of which opportunity wag not given to the parties to adduce evidence, such a question will not be allowed to be raised for the first time in appeal. In the present case, however, the plea of limitation was taken and the facts necessary to come to a decision on the point whether the special rule of limitation prescribed by Article 3, Schedule 3, Ben. Ten. Act, applied were gone into, and there was no question of any prejudice to any party. Moreover, u/s 184, Ben. Ten. Act, the Court is bound to dismiss the suit if it be a suit specified in Schedule 3, and is not instituted within the time prescribed in that schedule, although limitation has not been pleaded. In such class of cases, therefore, it is not necessary that the plea of special limitation under Article 3, Schedule 3, should be specifically taken in the written statement, and it was open to the appellant in this appeal to raise the question. I would therefore disallow the objection of the respondents on this point.

21. The result, therefore, is that it must be held that the suit was not barred by limitation and, as the other findings of the District Judge have not been challenged before us, the decree of the District Judge must be affirmed and this appeal dismissed with costs.

Courtney-Terrell, C.J.

I agree.

James, J.

I agree.