Dhanukdhari Singh vs M. Syed Rafiqui Rahman and Another

Kulwant Sahay, J.—This is an appeal by the plaintiffs against a decision of a single Judge of this Court who, agreeing with the decision of the Subordinate Judge of Muzaffarpur, dismissed their suit on the ground of limitation. It appears that there was a holding which belonged to one Baijnath Singh. He died leaving a widow, Mt. Deorati Kuar, who died in the year 1918. After her death the succession opened to the reversionary heir of Baijnath Singh. The plaintiffs claimed to be the reversionary heirs along with the defendants fifth party. Defendants fifth party claiming the whole of the holding sold it to the defendants third party on 24th October 1918.

The defendants first and second party, who are the landlords, instituted a suit against the defendants third party for ejectment on the ground that the holding was not transferable. They obtained a decree in ejectment and got possession in execution of that decree on 8th April 1922. The present suit was instituted by the plaintiffs on 21st November 1924 for a declaration of their title to the holding and for recovery of possession.

The Munsif found that the plaintiffs had established their title to a share of the holding. There was a plea of limitation raised by the contesting defendants namely the landlords which the Munsif disallowed on the ground that the period of limitation was the ordinary period of 12 years under the Limitation Act and the suit had been instituted within that period from the date on which the plaintiffs acquired title to the holding. He held that the special period of limitation under Article 3, Schedule 3, Ben. Ten. Act, did not apply to the present case. On appeal the learned Subordinate Judge held that the case was governed by the special period of limitation under the Bengal Tenancy Act and he dismissed the suit on the ground that it was instituted more than two years after the dispossession On second appeal this decision was affirmed by a single Judge of this Court.

In order to attract the provisions of Article 3. Schedule 3, Ben. Ten. Act it must be proved that the plaintiffs were dispossessed more than two years before the date of the suit by the landlords. In the present case the dispossession by the landlords on 8th April 1922 was not of the plaintiffs but of the purchaser from some of the reversionary heirs on the ground that the holding was not transferable. The plaintiffs were never dispossessed by the landlords. In fact the finding seems to be that the plaintiffs never took possession of the holding after the death of the widow of the last male holder of the holding. The widow died within 12 years of the suit. The plaintiffs'' title therefore has not been extinguished. They had a good title on the date of the suit and as they were never dispossessed in fact they were never in possession and could not have been dispossessed by the landlords the special limitation under Article 3, Schedule 3, Ben. Ten. Act, did not apply. In these circumstances the decree made by the Munsif was correct.

The decree of the Subordinate Judge must therefore be set aside and that of the Munsif restored. The plaintiffs are entitled to their costs throughout.

Courtney-Terrell, C.J.

I agree.