MT DEORATI KUER Vs. DASARATH DUBEY

JUDGEMENT

(1.) This case has been referred to a Division Bench by a learned Judge sitting singly. The appeal is by the landlord, defendant 1, in the suit, and the only point that arises is one of limitation, namely whether the suit is governed by the special rule of limitation under Art. 3, Schedule 3, Bihar Tenancy Act, which provides two years limitation from the date of dispossession in the case of a suit to recover possession of land claimed by the plaintiff as a raiyat or an under raiyat, or governed by the general rule of limitation whereby twelve years is provided under Art. 112, Limitation Act. The respondent brought a suit for recovery of possession of a sarahmoayan holding bearing khata No. 311 in village Chorain in the Shahabad District. This holding originally belonged to defendant 3 and the plaintiff purchased it on 9 June 1923. Later on, the landlord (defendant 1) brought a rent suit against defendant 3 (the original tenant), obtained a decree, and in execution of that decree obtained dakhal dehani from the Court on 12th September 1929.

(2.) The plaintiff sued on the allegations that he was not a party in that suit, knew nothing about it and was not dispossessed by the dakhal dehani. In 1933 however a criminal case was brought against the plaintiff by defendant 2, a servant of defendant 1, in which the plaintiff was convicted and his conviction was maintained by the High Court in revision on 18 December 1933. Taking advantage of this decision the landlord dispossessed him on 30 December 1933. The present suit was brought on 18tb December 1936.

(3.) If two years limitation applies, it would be barred by limitation. If twelve years, it would not. The Courts below came to concurrent findings that the decree obtained by the appellant against defendant 3 was only a money decree that the plaintiff remained in possession after the delivery of possession by the Court and that he was only dispossessed, as alleged by "him, after his conviction in the criminal case. The learned Munsif held that the case was governed by two years limitation under Art. 3, Schedule 3 and so the claim was barred by limitation. The learned Subordinate Judge was of opinion however that the case was governed by Art. 142 and twelve years limitation and so he decreed the suit.