AMIRUDDIN SARKAR Vs. NISARUDDIN SARKAR

JUDGEMENT

(1.) This appeal arises out of a suit for establishment of plaintiff's title to 14 bighas of land described in the plaint and for confirmation of possession of those lands. The only question that arises in this appeal is whether the suit is barred by the special law of limitation under Art. 3, Schedule 3, Ben. Ten. Act as found by the lower Appellate Court. The facts are shortly that the land in suit is included in the jote of 26 bighas standing in the name of Khidirsai Mondal and held by him under the landlords defendants 1 to 3. On Khidirsai's death 3 bighas out of the holding passed by inheritance to the plaintiff and 11 bighas he obtained by a compromise decree in a mortgage suit against his co-sharers who had mortgaged 12 bighas of their land with him. On behalf of the defendants, it is claimed that they purchased the jote in execution of a mortgage decree on 8 December 1928 and settled the jote with defendant 4 in Chaitra 1340 B.S. The trial Court decreed the suit but on appeal the lower Appellate Court held that the suit was barred by limitation.

(2.) On behalf of the appellant it is urged (1) that inasmuch as dispossession was not of a raiyat by his landlord the law of special limitation under Art. 3, Schedule 3, Ben. Ten, Act does not apply, the plaintiffs not being raiyats under the defendants; (2) that the dispossession was not proved inasmuch as the writ for delivery of possession was not produced and there is no evidence that the plaintiff was dispossessed as is claimed under Order 21, Rule 95. Thirdly it is urged that dispossession by an auction-purchaser does not bring the case within the provisions of the special law of limitation under Art. 3, Schedule 3, Ben. Ten. Act. As regards the last point there are conflicting judicial decisions on this point. The decision of the Letters Patent appeal in Satish Chandra V/s. Hashem Ali supports the view taken by the lower Appellate Court. In that case it was held that It would be a misinterpretation of the Art. to hold that it contemplates only dispossession lay the landlord as such and by direct action; in other words, that oases when the landlord dispossesses as auction-purchaser and the dispossession is effected by the instrumentality of a Court of law are excluded from the operation of the Article.

(3.) The same view was held in Sheikh Alam V/s. Atul Chandra Roy , In that case it was also held that the usufructuary mortgages from the tenants who are in possession at the time of such dispossession are equally affected by the rule. There are a number of oases in which it has been held otherwise. In this connexion I am referred to the case in Gajadhar Rai V/s. Ram Charan Gope (1930) 17 AIR Pat 256. The same view is taken in Gosta Behari Pramanik v. Amiya Kumar Das (1935) 63 Cal 503. In view of this divergence of judicial opinion there is something to be said for a reference to a Full Bench. But I am not prepared to do so in this case as I am inclined to accept the view which was taken by the learned Judges in the Letters Patent appeal in Satish Chandra V/s. Hashem Ali which has been followed in this case by the Court of Appeal below. I hold there, fore that the dispossession by the landlords as auction. purchasers did come under the provisions of the special law of limitation under Art. 3, Schedule 3, Ben. Ten. Act. In the second place it was urged that dispossession was not properly proved and the finding that the plaintiff was dispossessed by the landlords was not founded on any evidence inasmuch as the contention of the defendants was that they got delivery of possession through Court whereas the writ of delivery of possession was not filed and that the evidence merely showed that the landlords were in possession through defendant 4. This is also borne out by the certified copy of. the Suit Register Ex. B and an amalnama dated 17 Chait 1340 Ex. A. The learned Judge however appears to have decided that the landlords obtained possession as alleged by them on the circumstantial evidence that they had brought the suit, that they had purchased the lands in execution of a sale and that it was not natural and probable that the defendants after their auction-purchase of the jote land as shown by the sale certificate remained silent and did not exorcise, any act of possession over the land purchased by them. It might be held that the evidence was not sufficient that they took possession through a Civil Court; this being a finding of fact it is not open to consider the matter further.