KASHI PRASAD SINGH Vs. RAM PRASAD SINGH

JUDGEMENT

(1.) This is a plaintiffs second appeal from the concurrent decision of the Courts below dismissing their suit for possession in respect of 8 bighas and odd kathas of land situate in plot No. 405 in Khata No. 236 in village Ainjani Ghat which was originally Tauzi No. 8783 but which by a collectorate partition, was carved out into separate tauzis including tauzi No. 14539 which was allotted to two persons called Ramraman and Rantiraman. The holding comprised an area of 30.32 acres, including Tauzi No. 405 with an area of 11.68 acres. The original raiyats executed a usufructuary mortgage bond in respect of 9.13 acres out of plot No. 405 to the plaintiffs. After the collectorate partition, Ramraman and Kantiram sued for arrears of rent in respect of portions of plots Nos. 405 and 406, with a total area of 16 bighas 3 kathas and odd, some of the original raiyats. A decree for rent was passed on 28-51929, and, in execution, the area aforesaid was auction-purchased by defendant 1. Delivery of possession was taken through Court on 26-2-1933. There was a proceeding under Section 145, Criminal P.C., in respect of the land aforesaid, and the criminal Court decided in favour of the auction-purchaser. The judgment in the proceeding under Section 245, Criminal P.C, is dated 9-7-1938. The defendants-first party settled the land with the defendant-second party on 31- 1-1941. The suit was commenced on 5-7-1941, by the plaintiffs as mortgagees on the ground that they had been dispossessed by the defendants though the decree, in execution of which the property had been sold, had only the effect of a money decree, inasmuch as all the?tenants had not been impleaded in the rent suit.

(2.) The suit was contested by the defendants on the ground that it was barred by limitation in view of the special provisions of the Bihar Tenancy Act, and that the purchase by the defendant first party was in execution of a rent decree properly so called.

(3.) The Courts below have dismissed the suit, holding that the special limitation of two years applied to it and, as the plaintiffs had instituted the suit more than two years after the delivery of possession in 1933, it was beyond time. They have also held that the decree, in respect of which the execution proceedings had been taken and the property sold had the effect only of a money decree, inasmuch as all the tenants had not been impleaded in the rent suit.