(1.) The suit, out of which this appeal has arisen, was instituted by the plaintiff's for a declaration of their karsha right in the lands in suit and for evicting defendant 1 therefrom. The plaintiffs case was as follows: They inherited the karsha from their predecessor Nawab Ali, who was a tenant under one Amibikacharan Bhattacharjya, and others and one Kanai Khan was an under-raiyat under Nawab Ali. The interest of Ambikacharan Bhattacharjya and others was subsequently purchased by defendant 2. On the death of Kanai Khan, they sued the heirs of Kanai Khan and certain mortgagees from Kanai Khan for khas possession and obtained a decree against the said heirs only, but not against the mortgagees who disclaimed all interest. They obtained khas possession in execution and settled the land with defendant 3. Then there was a proceeding under Section 145, Criminal P.C., in which the possession of defendant 1, who was said to be a bargadar under the mortgagees, was maintained. The plaintiffs case was that defendant 1 dispossessed them in Chaitra, 1334 B.S. The defence taken was that the suit was barred by limitation, as the plaintiffs predecessor, Nawab Ali, as well as the under-raiyat, Kanai Khan, surrendered their respective interests in favour of defendant 2 in 1324 B.S. and that since then defendant 2 has been in possession through her bargadar, defendant 1.
(2.) The story of surrender has not been believed by either of the Courts below. The Munsif found the plaintiffs title established. He held that defendant 1 has been in possession since 1326 B.S. and that the story of the plaintiffs possession through defendant 3 was not true. On a consideration of the facts which he found, he came to the conclusion that the possession of defendant 1 was obtained by means of dispossession of Kanai Khan, who was in actual possession as an under-raiyat under the plaintiffs predecessor Nawab Ali. He held that the possession of defendant 2 through defendant 1 would, at the most be tantamount to a dispossession of Kanai Khan and not of the plaintiffs. In this view, he held that the suit was not barred by limitation, either general or special.
(3.) The Subordinate Judge held that the story that defendant 1 came under a settlement from the mortgagees was not true. He held further that defendant 1 was in possession in 1327, 1328 and 1329 on the strength of a kabuliyat which defendant I executed in favour of defendant 2. On these findings he held that the suit was barred under the special limitation prescribed in Art. 3, Sch. 3, Ben. Ten. Act. The plaintiff, as appellant, contends that the article does not apply for two reasons, which perhaps it would be better to formulate definitely. They are firstly, because there is nothing to show that the dispossession was by the landlord or at his instance, as the taking of a kabuliyat would not necessarily indicate that it was so; and, secondly, that, when defendant 1 came into possession, the land was in the possession of the heirs of the under-raiyat Kanai Khan, who had no right to remain on the land and were consequently trespassers, and therefore the dispossession was of these trespassers and not of the plaintiff s.