1. The plaintiff and certain other persons were the heirs ofone Rajabulla. The defendants Nos. 1 and 2 were the co-sharer landlords of thejote which was held by Rajabulla. On the death of the latter, the defendantsNos. 1 and 2 dispossessed the plaintiff from the land, they having secured akobala of the entire land from defendant No. 8, one of the heirs of Rajabulla.

2. The plaintiff brought a suit for joint possession inrespect of his share of the land and the question raised in the case is whetherthe suit is governed by the provisions of Article 3, Schedule III of the BengalTenancy Act.

3. There is a divergence of judicial opinion with respect tothe scope of Article 3, Schedule III, and in some cases it has been held thatthe article is inapplicable to a case where the dispossession is effected bythe landlord not as landlord but an auction purchase r and under process of theCourt. 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 Singh19 Ind. Cas. 545 [LQ/CalHC/1913/121] : : 17 C.W.N. 817; Ram Kinkar v. Sthiti Ram46 Ind. Cas. 221 [LQ/CalHC/1917/461] : 27 C.W.J. 528.

4. On the other hand a different view has been taken in thefollowing cases Aminuddin Munshi v. Ulfutunnissa Bibi 3 Ind. Cas. 315 [LQ/CalHC/1908/94] : 13C.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 860and Kunti Dai v. Jharu Lal Das 40 Ind. Cas. 907 [LQ/PatHC/1917/233] : 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 Full Bench in Peary Mohan Mukherjee v. ArunodoyGhose 58 Ind. Cas. 581 [LQ/CalHC/1920/160] , but it was held that the question referred did notarise in this case because the dispossession was subsequent to the symbolicalpossession delivered to the landlord and was made at a time when the plaintiffwas in possession as tenant under the landlord. The case sited above, exceptthe case of Kunti Dai v. Jharu Lal Das 40 Ind. Cas. 907 [LQ/PatHC/1917/233] : 2 P.L.J. 567 : 2P.L.W. 16 : (1917) Pat. 247, were all cases in which the question arose betweenthe plaintiff and the landlord after the latter had purchase d the property atan execution sale. In the present case, there is no question of, anauction-purchase by the landlord.

6. It is contended, however, on behalf of the respondentthat the principle laid down in the first get of cases would apply also to acase of a private purchase, because in both cases the purchase is made by thelandlord not in his capacity as landlord but as a purchase r; and we have beenasked to refer the case to a Fall Bench having regard to the divergence ofjudicial opinion on the point.

7. We do not think, however, that the matter should bereferred to a Full Bench; for the case of a private purchase does not stand onthe same footing as a purchase at an execution sale. In the case of Ram Kinkarv. Sthiti Ram 46 Ind. Cas. 221 [LQ/CalHC/1917/461] : 27 C.W.J. 528, already referred to, Mookerji,J., stated: "It is plain that Article 3 of the Third Schedule to theBengal Tenancy Act has no application to the case before us. It is well settledthat where a landlord in execution of a decree for arrears of rent puts theholding to sale, purchases it himself and obtains delivery through Court, suchdispossession of the tenant is not dispossession within the meaning of Article3 Kamal Dhari Tkahur v. Rameshwar Singh 19 Ind. Cas. 545 [LQ/CalHC/1913/121] : 17 C.W.N. 817.Indeed so long as the sale remains in force, the possession of the landlordauction purchaser cannot possibly be challenged by way of suit." It wasalso 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 deliverpossession and possession is delivered to him at his instance, he getspossession through the intervention of the Court; "the delivery ofpossession by which the dispossession is effected is an Act of the Court, andwhen the landlord gets into possession by a process of the Court, we do notthink it is an Act of dispossession by the landlord within the meaning of thearticle, which contemplates a dispossession by the landlord by taking the lawinto his own hands and otherwise than in due course of law." A similarview 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 thedispossession here was in that capacity and under a process of Court issued toput the defendant in possession as auction- purchaser, has in effect been foundby the Courts below and is not disputed." When the landlord purchases at asale held in execution of a decree, possession is delivered to him by the Courtas auction purchaser, i.e., on the footing that there is no longer any relationof landlord and tenant between him and the tenant and the possession of thelandlord as purchaser cannot be challenged so long as the sale is not set asideor declared ineffective against the tenants . In the case of a private purchasesuch as the present, there is a relation of landlord and tenant between theplaintiff and the defendant and the mere fact that he obtained a kobala fromone of the heirs of the original tenant cannot take the case out of the purviewof Article 3, Schedule III.

8. Having regard to all these considerations we think thatthe case does come under Article 3, Schedule III of the Bengal Tenancy Act. Theappeal is decreed, and the suit must accordingly be dismissed. The appellantwill be entitled to half the costs in all Courts.

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Nabin Chandra Shaha and Ors.vs. Sheikh Wajid and Ors.(05.12.1919 - CALHC)