KUBIR MOLLA Vs. MANIK MALLIK

JUDGEMENT

(1.) THIS Reference arises out of a second appeal filed by the defendant against a decree made by the Additional Subordinate Judge of Jessore reversing a decision of the Munsif, Bongaon. The facts which are relevant for the purposes of this Reference are as follows: Under the same set of landlords there were two occupancy holdings, one bearing an annual rent of Rs. 10/- and the other bearing an annual rent of Rs. 95-13 as. In execution of a decree for arrears of rent in respect of the latter holding the landlords brought the former holding to auction sale and at that sale the appellant who is a complete stranger purchased the holding on June 22,. 1937. As the execution and sale took place prior to the introduction of section 168a in the Bengal Tenancy Act, the landlord had the right to put up to sale one holding for arrears of rent due in respect of another holding. On July 8, 1943 the plaintiff-respondents instituted a suit alleging that though they were some of the heirs of the tenants of the two holdings, they had not been imp-leaded in the rent suit or in the execution proceedings and though their right, title and interest were not affected by the rent decree or the auction sale held in execution thereof, they had been illegally dispossessed by the auction purchaser. The material defence of the contesting defendant who is the appellant in this Court is that the plaintiffs' suit is barred by the special law of limitation of two years as enacted in Schedule III Article 3 of the Bengal Tenancy Act. Upon evidence adduced by the parties the court of first instance found that the plaintiffs had 4 annas 9 pies share in the property in dispute and further that the contesting defendant was in possession ever since the date of his auction purchase on June 22, 1937. Upon these findings the learned Munsif dismissed the plaintiffs' suit on the ground that it was barred by the special law of limitation of two years. On appeal by the plaintiffs the Additional Subordinate Judge affirmed the findings of the trial court on the question of the plaintiffs' title, but reversed its decision on the question of limitation upon the view that the suit was not governed by the special law of limitation of two years but by the general law of limitation of 12 years. In the result, the court of appeal below reversed the decision. "of the trial court and decreed the plaintiffs' suit. Against that decision the plaintiffs filed a second appeal in this Court. At the hearing of the second appeal it was found that there are conflicting judgments of different Division Benches of this Court on the question whether dispossession by a stranger purchaser at an auction sale held in execution of a rent decree obtained by the landlord amounts to dispossession by the landlord within the meaning of Article 3, Schedule HI of the Bengal Tenancy Act and accordingly that question has been referred to a Full Bench.

(2.) THE Order of Reference contains a very useful summary of various conflicting decisions on different questions under Schedule III, Article 3 of the Bengal Tenancy Act. After examining the facts of the present case and after hearing the learned Counsel appearing for the parties we have however come to the conclusion that the first question referred to the Full Bench does not arise for consideration in the facts of this case and as it is of academic interest we do not propose to answer the first question. By that question the referring Judges ask whether the provisions of Schedule III, Article 3 are attracted only when the dispossession of the plaintiff by the landlord is in his capacity as landlord or in any other capacity. Since the dispossession in the present case is not by the landlord, qua landlord or qua auction-purchaser that question does not require any answer in this Reference.

(3.) THE second question has a direct bearing on the facts of this case and that question raises the point whether dispossession by a stranger purchaser at an auction sale held at the instance of the landlord is equivalent to dispossession by the landlord. Schedule III, Article 3, of the Bengal Tenancy Act requires that a suit for recovery of possession of land claimed by the plaintiff as a raiyat or under-raiyat should be instituted within two years from the date of dispossession. The language of the Article, however, is silent on two vital points. The first omission is that in describing the class of suits in the first column to which the Article applies, it does not specify whether the Article is confined to suits against landlord only or extends also to suits against persons other than landlords. The second omission is that in fixing the starting point of limitation from the date of dispossession in the third column, it does not) specify the person by whom the dispossession has been effected. These two omissions have led to a considerable divergence of judicial opinion as to the applicability of the Article. It cannot however, be denied that since the Article finds place in a statute which according to its preamble is intended "to amend and consolidate enactments relating to the law of landlord and tenant", the dispossession contemplated by the third column of the schedule means dispossession by the landlord. Dispossession by the landlord again does not mean dispossession by the personal intervention of the landlord himself and may include dispossession by an authorised agent of the landlord acting within the scope of his authority, in which case the act of the agent will be treated as the act of the principal. It is impossible to extend the scope of the Article beyond these limits because the Article curtails the period of limitation enacted by Article 142 of the Indian Limitation Act in a specified. class of cases and must be strictly construed. I accordingly hold on a plain construction of the Article read with the preamble of the Bengal Tenancy Act and untrammeled by authorities that the word dispossession in the third column of the Article is dispossession by the landlord or by an authorised agent of the landlord acting within the scope of his authority.