DWARKANATH CHOWDHURY Vs. TAFAZAR RAHAMAN SARKAR

JUDGEMENT

(1.) The District Judge allowed the plaintiff s claim. On appeal to this Court Mr. Justice Newbould held that the suit was barred by limitation under the provisions of Clause 1(a), Schedule III, of the Bengal Tenancy Act It has been found as a fact that the defendants were not in possession of the land before they enter it under their lease for five years and that the land in suit is khas khamar land of the plaintiffs. We must accept this finding and dispose of this appeal accordingly.

(2.) The question then is, do the defendants come within the term ?non-occupancy raiyat" as mentioned in the Schedule. It is admitted that if the defendants are non-occupancy raiyats, then the suit is barred. If this portion of the Schedule does not apply then the general law of limitation does and the suit is not barred. The contention that has been urged before us may be summarised thus:

(3.) For the respondents it is contended that by the term ?non-occupancy raiyat" in the Schedule is meant any person who is a tenant who has not acquired or cannot acquire occupancy rights and that as the defendants have been in possession of khamar lands and could not acquire occupancy rights, they must be taken to be non-occupancy raiyats within the meaning of that Article and accordingly the six months law of limitation applies.