1. The Plaintiff, a minor, sued for confirmation ofpossession, and in the alternative for recovery of possession of 30 and oddbighas of khas land on a declaration that the decree obtained by the DefendantNo. 1 in a suit for rent, in respect of the said lands, and the proceeding inexecution whereof the lands were sold and purchased by the Defendant No. 1(which were subsequently settled by him with the Defendant No. 2) werefraudulent and inoperative against him. The Court of first instance found thatthe amlas of the Defendant No. 1 kept the Plaintiff, who was the Defendant inthe rent-suit, and his mother in complete ignorance of the suit, that thewritten statement said to have been filed on his behalf in the said suit by hismother had not been filed by her, and that the rent-decree which was tainted byfraud and the sale held in execution thereof were invalid. It held, however,that the Plaintiff was out of possession since the Defendant No. 1 obtaineddelivery of possession on purchasing the lands, and accordingly gave a decreefor possession of the same.

2. On appeal, the learned District Judge held that thePlaintiff having been dispossessed on the 30th April 1904 when the delivery ofpossession was effected and the suit having been brought on the 13th July 1908,the suit was barred by the special limitation of 2 years under Art. 3, Sch. IIIof the Bengal Tenancy Act; and, on the merits, holding that there was nothingto justify a finding that deliberate fraud had been committed, set aside thedecree of the Munsif and dismissed the suit. The Plaintiff has appealed to thisCourt.

3. The first point to be determined is whether the speciallimitation provided in the Bengal Tenancy Act applies to the suit, for if itdoes not apply, the suit will not be barred apart from any other consideration,as the Plaintiff is still a minor. The Munsif found that the Plaintiff wasdispossessed by the dakhaldehani and that finding has been accepted by thelearned District Judge. The question, therefore, is whether the dakhaldehani(delivery of possession) to the Defendant No. 1 by which the Plaintiff was putout of possession, constitutes dispossession by the landlord. We are of opinionthat it does not, and for two reasons. The first is, that although theDefendant No. I is the landlord, he obtained possession not as a landlord butas a purchaser at a sale held in execution of a decree. It has been held inseveral cases in this Court that the special limitation does not apply to acase where an occupancy raiyat is dispossessed from his holding by hislandlord, not acting as landlord but in his character as auction-purchaser. SeeAbhoy Churn Mukerjee v. Sheikh Tilu 2 C. W.N. 175 (1897), Brojo Kishore v.Saraswati 6 C. W. N. 333 (1901) and Mahomed Khalil v. Hirendra Nath 5 C. L. J.650 (1906).

4. It is true in those cases, the purchaser was a co-sharerlandlord and not the sole landlord, but we think that makes no difference inprinciple. The special limitation is as much applicable to a dispossession by aco-sharer landlord, as to dispossession by a sole landlord or entire body oflandlords. See Annada Sundari v. Kebul Ram 7 C. W. N. 542 (1903) The reason ofdecision of the three cases cited above is that the landlord takes possessionin a capacity different from that of the landlord and that reason applies asmuch to a purchase by a sole landlord or the entire body of landlords as to apurchase by a co-sharer landlord. The possession is delivered to the landlord(whether he is a sole landlord or a co sharer landlord), not as a landlord butas a purchaser.

5. Secondly, we are of opinion, that the dispossessioneffected by the act of delivery of possession by the Court is not dispossessionby the landlord within the meaning of Art. 3, Sch. III of the Bengal TenancyAct. The landlord (as purchaser) no doubt, moves the Court to deliverpossession and possession is delivered to him at his instance, but he getspossession through the intervention of the Court. The delivery of possession bywhich the dispossession is effected is an act of the Court and when thelandlord gets into possession by a process of the Court, we do not think it isan act of dispossession by the landlord within the meaning of the article,which contemplates a dispossession by the landlord by taking the law into hisown hands and otherwise than in due course of law.

6. Reliance was placed on behalf of the Respondents on thecase of Aminuddin v. Ulfatunnessa Bibi 9 C. L. J, 131 (1908). There thepurchaser at a sale in execution of a landlords decree for rent dispossessedthe Plaintiffs who were some of the heirs of the tenant and who had not beenmade parties to the rent-suit. In that case, it was found that thedispossession was made by the landlord through the contesting Defend- ant (thepurchaser) who acted in collusion with him in dispossessing the Plaintiffs. Ifthe actual dispossession was made by the purchaser subsequent to the deliveryof possession by the Court, in collusion with the landlord, then the case mightfall within the principle of the cases where it has been held that adispossession by a person in collusion with, or under a settlement from, thelandlord is virtually dispossession by the landlord and that therefore thespecial limitation applies to such cases. The learned Judges, however, in thecourse of the judgment said, "It is clear that when the landlord sold theholding, he impliedly undertook to recognise the purchaser as his tenant and tomake settlement with him. In pursuance of that implied offer, the contestingDefendant purchased the land and took possession of the same and has now beenrecognised by the landlord as his tenant If there had been no such impliedoffer and agreement to recognise him as a tenant he would never have purchasedthat and. In these circumstances, we think that the landlord and the contestingDefendant must be held to be acting in collusion in the act of dispossessingthe Plaintiffs and it is not the new tenant who alone dispossessed him. Forthis reason, we think that the rule of limitation is two years under Art. 3,Sch. III of the Bengal Tenancy Act."

7. If the only act of dispossession by the purchaser was theact of taking possession by process of Court then the decision is opposed tothe rulings we have cited above in which it was clearly laid down that thespecial limitation dots not apply where the dispossession is by the landlordnot in his capacity as landlord but in his capacity as auction-purchaser. Ifthe special limitation does not apply where the landlord is himself thepurchaser, much less will it apply when the purchaser is a third person, evenif he may be said to be in collusion with the landlord, by the mere fact ofpurchasing at the sale. None of the said rulings are referred to in the saidjudgment, and the principle of the said rulings does not appear to have beenconsidered in the case. We, therefore, respectfully dissent from the view takenin that case and follow the principle of the decisions to which we havereferred. We accordingly hold that the special limitation of two yearsprescribed by Art. 3, Sch. III of the Bengal Tenancy Act does not apply to thepresent case and as the Plaintiff is still a minor, the suit is not barred bylimitation. We are also of opinion that the learned District Judge has notarrived at proper findings on the merits of the case. This was probably becausethe learned Judge thought the question of limitation was fatal to the case. Atthe outset, the learned Judge is in error in stating that the Munsif had laidthe onus too heavily on the Appellant (Defendant), but the Munsif relied on theevidence for the Plaintiff and the circumstances of the case, and does notappear to have placed the onus upon the Defendants. Then the Judge says thatthe onus which lay upon the Plaintiff has not been discharged by the meredeposition of his mother. Her mere deposition might not be sufficient, but theMunsif relied upon other facts and circumstances as well which have not been consideredat all by the Appellate Court. Lastly, the learned Judge has not arrived at apositive finding that the written statement was not filed by the Plaintiffsmother or that the decree was not obtained by fraud or that the proceedings inexecution thereof were not invalid-matters upon which the Munsif came to clearfindings in favour of the Plaintiff. We think the case has not been properlytried on the merits by the lower Appellate Court, and that the case must goback to that Court. The decree of the lower Appellate Court is accordingly setaside and the case is remanded to that Court for a rehearing of the appeal onthe merits and for disposal according to law. Costs to abide the result.

.

Kamaldhari Thakur vs. Rameshur Singh Bahadur and Ors.(28.02.1913 - CALHC)