JOGENDRANATH SEN Vs. BEHARI LAL DAS

JUDGEMENT

(1.) These appeals are by the defendants 1 to 3 in the suits which have been decreed by the Additional District Judge affirming the decisions of the Munsiff. In all these suits the plaintiffs claimed as under-raiyats of a certain holding in a village called Chorekhali. The lands in all the suits comprise the C.S. plots 3, 4 and 5. The plaintiffs alleged that they were in possession of the lands through their bargadars and that in the month of Sravan 1327 B.S., one of the plaintiffs, Ramesh Chandra Das Gupta, in one of the suits raised a hut on plots 3 and 4, which led to the institution of proceedings under Section 145, Criminal P.C. between the plaintiffs and defendants 1 to 4 in which an order was made in favour of the defendants. The plaintiffs thereupon were prevented from going upon the lands and the suits were, therefore, brought for recovery of khas possession against the defendants. Defendant 4 did not put in appearance. Defendants 1 to 3 pleaded that the lands in question belonged to one Judisthir Nashkar and not to the person from whom the plaintiffs claimed to have purchased, that those defendants purchased the interest of Judisthir and had been in possession of the lands in question for a considerable number of years much beyond 12 years. Several issues were raised in the Court below and one of the issues was whether the suits were barred by special law of limitation under Art. 3, Schedule 3, Ben. Ten. Act. Defendants 1 to 3 claimed to be cosharer landlords of mouza Chorekhali. In para. 15 of the written statement they stated that fact. In other paragraphs following (16 and 17) of the written statement, these defendants said that they were also the co-sharer landlords of the neighbouring mouza Bardiahat within which there was a mirash tenure and that their vendor Judisthir used to hold these lands under that mouzih. Both the Courts below have found that the lands are not within mouzah Bardiahat but within Chorekhali and that the persons from whom the plaintiffs professed to have derived their title were raiyats on the lands. Both the Courts have also found that the plaintiffs had proved that they were in possession within 12 years before the suits. It was mainly on all these findings that suits were decreed. Proceedings under Section 145, Criminal P.C. were started on 12 August 1920 and the final order of the Magistrate retaining the defendants in possession of the lands in suits was made on 14 April 1921. The suits out of which these appeals have arisen were instituted between 9 and 11 April 1923. The question that has been pressed before us on behalf of the appellants is that the plaintiffs suits were barred by the special law of limitation under the Bengal Tenancy Act. The learned Additional District Judge rejected this contention of the defendants by the following observation: The defendant-appellant claimed title to the land not as cosharer malik but as purchaser of a lease of Judisthir's holding and he is therefore not in a position to raise any question of transferability and lower down he observes: As regards special limitation I have already expressed the view that the possession of the defendants was not in the capacity of a cosharer landlord and there can consequently be no question of special limitation.

(2.) Babu Brojolal on behalf of the appellants contended that the view of the Additional District Judge, in affirming the Munsiff's judgment that in order to bring into play the special limitation as provided in the Bengal Tenancy Act, it is necessary to establish that the defendants dispossessed the plaintiffs in the capacity of cosharer landlords is erroneous. Now this theory of the landlord dispossessing a raiyat or an under raiyat as such, in order to bring the special law of limitation under the Bengal Tenancy Act into operation, is an exploded one. It is not necessary to refer to the long line of cases dealing with this point, as it is sufficient to draw the attention of the learned District Judge to the case of Satish Chandra Banerji V/s. Hasemali Kazi , and many years previous to this Sir Lawrence Jenkins, took exception to the expression made in some of the cases about the dispossession by a landlord "as such." The view of the learned Additional District Judge being obviously erroneous, the question then arises whether the plaintiffs suits were barred under the special law of limitation. In the view taken by the learned Additional District Judge that the rule of special limitation did not apply, he did not come to any finding on the question. The Munsiff also came to no finding on the special law of limitation, as he held this was not a case of dispossession by a landlord. He expressed his view in the following words:Defendant 4 is a cosharer malik of Chorakhali. He has not entered appearance in this suit though duty summoned. He does not come forward and plead special limitation. Only defendants 1 to 3 have entered appearance. They are the de facto maliks of the Bardiahat. Defendant 4 is very likely their benamdiar. So I hold that the suits are not barred by special limitation.

(3.) It is contended by the learned advocate for the appellants that this finding means that defendant 4 was the benamidar of defendants 1 to 3 with regard to both the properties. On the other hand it is contended by the learned advocate for the respondents that the Munsiff meant that defendant 4 was a malik of Chorekhali, but he was the benamidar of defendants 1 to 3 with regard to the Bardiahat. With regard to this question I will make my observation later on.