RAKHAL DAS NEPAL PRAMANIK Vs. KHIRODE BANDHU NANDI

JUDGEMENT

(1.) The question raised by this appeal is one of some nicety and is one of special limitation under Art. 3 Schedule 3, Ben. Ten. Act.

(2.) The relevant facts are these : Plaintiff who is a minor is the tenant of the non-transferable occupancy holding which is the subject matter of the present suit. His mother, who is an illiterate pardanashin woman sold the lands to defendant 2. The deed of sale was executed by plaintiff's mother in her personal capacity and has been held by both Courts not to be binding on plaintiff. After the sale, the plaintiff with her mother abandoned the holding in Aghrayan 1328, i.e. in November or December 1921 and thereupon two of the cosharer landlords took khas possession. Hence plaintiff has brought this suit. The suit was instituted admittedly beyond two years of the landlord's talcing khas possession. The Court of first instance found in favour of the plaintiff both on the question of title and special limitation. On appeal the lower appellate Court while not disturbing the finding of the Munsiff on the question of title has reversed the decision of the Munsiff on the question of special limitation and has dismissed plaintiff's suit.

(3.) Against this decision of the Subordinate Judge the present appeal has been brought. It is argued for the appellant that Art. 3, Schedule 3, Ben. Ten. Act has no application to the present case as the plaintiff was not dispossessed by the co-sharer landlords but the plaintiff having abandoned possession of the disputed lands the landlords have entered into possession. It is said that plaintiff discontinued possession and thereupon the landlord entered into possession. This, it is said, is not dispossession by the landlord, for dispossession must mean eviction by the landlord and his entry on such eviction. Here the tenant was already out of possession and no question of eviction arises. Attention is drawn to the distinction made between "discontinuance of possession" and "dispossession" in Art. 142 of the Schedule to the Limitation Act. The question we have to consider is whether this view is well founded.