PROVAKAR ROY Vs. BIBHUTI BHUSAN PAL CHOUDHURY

JUDGEMENT

(1.) This second appeal is by the heirs of the deceased plaintiff Tarapada Roy, The facts which are relevant for the purposes of this appeal may be shortly stated as follows. One Jatindra Prosad Roy Choudhury (defendant No. 7) held a tenancy under defendants Nos. 1 to 5, the Pal Choudhury landlords, at an annual jama of Rs. 29/4 as. The Pal Choudhury landlords obtained a rent decree against Jatindra in Rent Suit No. 1045 of 1929 of the Munsif's Court at Katwa, and in execution of that decree the defaulting tenancy was solid in Rent Execution Case No. 202 of 1931 and purchased by the plaintiff Tarapada Roy on the 17th April, 1931. This sale was confirmed on the 30th May, 1931. On the 16th May, 1939, this tenancy was again auction sold at a certificate sale held under the provisions of now repealed Chapter XIII(A) of the Bengal Tenancy Act at the instance of the Pal Choudhury landlords, and the certificate debtor against whom this proceeding was taken was Jatindra Prosad Roy Choudhury, the original tenant. At the certificate sale the tenancy was purchased by the Pal Choudhury landlords, defendants Nos. 1 to 5. On the 21st December, 1939, the certificate sale was confirmed and the auction purchasers Pal Choudhuries took delivery of possession on the 15th August, 1941. On the 22nd March, 1942, Nisada Bala Devi alias Niroda Bala Devi (defendant No. 6) purchased the right, title and interest of the Pal Choudhury landlords as Shebait of the Deity Sree Sree Iswar Dakshina Kalika Devi by a private conveyance. The plaintiff Tarapada Roy instituted the suit out of which this appeal arises on the 30th May, 1943. In the plaint as originally filed defendant No. 6 was described as Nisada Bala Devi alias Niroda Bala Devi, wife of Bholanath Banerjee. By an, amendment, dated the 4th March 1947, defendant No. 6 was described as Sree Sree Iswar. Dakshina Kalika Devi through Shabait Nisada Bala Devi alias Niroda Bala Devi, wife of Bholanath 'Banerjee. Ac- , cording to the Case made by the plaintiff in the plaint, he 'took delivery of possession after his purchase at the rent sale and he was in possession, throughout till he was dispossessed by the defendants in Aswin and subsequently in Agrahayan,. Pous and Magh, 1348 B. S. The substance of the case made by the plaintiff in the plaint was that he was the purchaser at the rent sale held on the 17th April, 1931, and in spite of that the certificate proceedings were taken by the landlords not against the plaintiff but against the original tenant, and therefore, the plaintiff's title was not in the least affected by the certificate sale which took place on the 16th May, 1939. On these allegations the plaintiff sued for a declaration of his title and recovery of his possession of the property in dispute.

(2.) The suit was contested by defendants Nos. 1 to 5 by one written statement and by defendant No, 6 by another written statement. Both sets of defendants denied the title of the plaintiff alleged to have been acquired by the rent sale held on the 17th April 1931, and pleaded in the alternative that even if the plaintiff had acquired any title un der the rent sale he was merely a benamidar of the original tenant Jatindra Prosad Roy Choudhury. The defendants further pleaded that the suit was barred by general limitation as well as by the special law of limitation under Schedule III, Article 3 of the Ben gal Tenancy Act. -

(3.) Both the Courts below have concurrently held that Tarapada Roy had purchased the holding at the rent sale held on the 17th April, 1931, but that he was merely a benamidar of the original tenant Jatindra Prosad Roy Choudhury, & the landlords 'were justified in starting certificate proceedings under Chapter XIII(a) of the Bengal Tenancy Act against Jatindra Prosad Choudhury who was the real tenant, and the sale held in that certificate proceeding passed the title of the defaulting tenant. and the landlords as auction purchasers at the certificate sale had acquired a good title, against the tenant, and the defendant No. 6 by her subsequent purchase from the landlords had also acquired a good title. Both the Courts below again have concurrently held that the plaintiff's suit is also barred by limitation because so far as defendant No. 6 is concerned, she was brought on the record for the first time on the 4th March 1947, when the plaint was amended by impleading a new person, viz., the Deity Sree Sree Iswar Dakshina Kalika Devi, represented by her Shebait Nisada Bala Devi alias Niroda Bala Devi. The Trial Court further held that the suit was also barred by the special law of limitation, but that finding has not been accepted by the Court of appeal below. As a result of the findings referred to above, both the Courts below have dismissed the plaintiffs' suit, and against the decree the plaintiffs have brought the present second appeal to this Court.