Bindeshwari Rai vs Ram Palak Singh

Agarwala, J.—Among the cosharer proprietors of the diara in which the land in dispute in this appeal is situate was one Brahmdeo. The interest of Brahmdeo was put up for sale in execution of a mortgage decree and purchased by Ajodhya Prasad. The auction, purchaser obtained delivery of possession from the Court in October 1923.

In 1929, a dispute relating to the possession of the land which is the subject-matter of this second appeal broke out between the plaintiff and defendant and led to a proceeding u/s 145. In those proceedings the defendant claimed a settlement from the auction-purchaser, Ajodhya Prasad, while the plaintiff alleged a settlement by the cosharer landlords. On 1st June 1929, the Criminal Court passed an order in favour of the defendant. The plaintiff therefore instituted the present suit based on an allegation that the land in dispute was settled with him in 1920 by all the co-sharer landlords. The trial Court held that the plaintiff had failed to establish the tenancy and accordingly dismissed the suit. In appeal this decision was reversed by the learned Subordinate Judge although that learned Judge found that the plaintiff was unable to establish the tenancy created by all the cosharer landlords in 1920. The Appellate Court however came to the decision that the land in dispute was settled with the plain, tiff by Brahmdeo a few months prior to the execution sale in which Brahmdeo''s interest was purchased by Ajodbya Prasad.

It is contended by the learned advocate for the defendant-appellant that the Appellate Court has in fact, while rejecting the tenancy set up by the plaintiff from all the cosharer landlords, made out a fresh case in his favour of a tenancy created by Brahmdeo and that the tenancy commenced not in 1920 as alleged by the plaintiff in his pleadings but in 1922. The evidence on which the Appellate Court has come to this decision is of a nature which is capable of interpretation either for the view that the plaintiff was a tenant of Brahmdeo or the contrary.

But the Appellate Court, as the final Court of fact, was entitled to draw such inferences from the facts as it thought proper and in second appeal there is no power in this Court to interfere with those findings; but when, as in this case, the Appellate Court, on the slenderest of evidence, makes out a case which is not in the pleadings, its finding of fact cannot be binding in second appeal. That however is not the only ground on which the appellant challenged the decision of the Court below.

This suit was instituted on 1st May 1932, and the defendant contends that it is barred by Schedule 3, Article 3, Ben. Ten. Act, That Article provides a period of limitation for a suit to recover possession of land claimed by the plaintiff as a raiyat or under-raiyat. The prescribed period is two years from the date of dispossession. It is contended by the learned advocate for the appellant that this Article applied to the present suit on the allegations in the plaint and on the findings of the Court below.

The allegation in the plaint was that Ajodhya Prasad having fraudulently had the name of the defendant entered in the Collectorate measurement khasra, subsequently caused a false report to be made to the police which resulted in proceedings u/s 145 of Criminal P.C., and that the plaintiff had been wrongfully dispossessed at the instance of Ajodhya Prasad. It has been pointed out in more than one case that mere allegations or suggestions in the pleadings are insufficient material on which to base a conclusion that dispossession was dispossession by the landlord; but when the Court on the evidence before it finds that the tenant was dispossessed by the landlord although he did not directly effect the dispossession himself then the position appears to me clear that Article 3 applies. Now, the finding in the present case was that some years after his purchase Ajodhya Prasad being anxious to recover the kasht lands of Brahmdeo which he had purchased in execution of the mortgage decree and which were in possession of the plaintiff, devised the plan of setting up a servant of his as a tenant of the land and in that way dispossessed the plaintiff. Whether the evidence in the ease conclusively proved that Ajodhya did utilise his servant for the purpose of dispossessing the plaintiff is immaterial in second appeal as it was certainly a finding which the Court below was entitled to come to on the evidence before it and which it has in fact arrived at. It was contended however by the learned advocate for the defendant that mere dispossession by a person with whom the landlord had settled the land does not amount to dispossession by the landlord.

The contrary was held in this Court by Mohammad Noor, J. in Har Dayal Bhagat v. Nathumal Bhagwat A.I.R.1935. Pat. 872. His Lordship there observed:

If the landlord authorizes a third person by making settlement of the land with him to dispossess a ratyat and that person armed with that settlement dispossesses him, the dispossession is by the landlord.

The learned advocate for the respondent suggested that I should not follow this ruling on the ground that a contrary view has been taken by the Calcutta High Court. One of the cases relied on is Basanta Kumary v. Nanad Ram 1913. 20 I.C. 350. The observations of Jenkins C.J. there with regard to the application of Article 3 of Schedule 3, are obiter dicta as it was found as a fact that the plaintiff had not been dispossessed at all.

The other Calcutta case relied upon is Rudra Narain Maiti v. Natabar Jan A.I.R.1914. Cal. 50 that case Jenkins C.J. again referred to his former protest against the terms of Article 3 being extended by the use of figures of speech and metaphors; but in the case before him, which was a Letters Patent appeal in a second appeal he was bound by the finding of fact that the landlord had not been responsible for the dispossession of the plaintiff. So that his Lordship''s observations with regard to the scope of Article 3 were again obiter dicta.

In this case, in view of the finding of the Appellate Court that Ajodhaya, the landlord, deliberately devised a plan for regaining possession of the land he had bought by dispossessing the plaintiff through the instrumentality of his own servant, I must hold that the suit is governed by the special period of limitation laid down in Article 3 and consequently the plaintiff''s suit was barred by limitation.

The result is that the decree of the Court below is set aside and the decree of the trial Court reinstated. The appellant is entitled to his costs. Leave to appeal under the Letters Patent is refused.