Hari Mohan Prasad Chaudhury and Others vs Md. Bashidul Haque and Others

Sen, J.—This appeal arises out of a suit instituted by the plaintiffs, who are appellants before us, for declaration of title, possession and mesne profits in respect of 2 bighas 6 kathas of land. The plaintiff''s case was that they had purchased this land which was part of the raiyati holding of one Naobhar Shah in execution of the money decree obtained by them against the said Naobhar Shah on the 22nd February, 1910. Thereafter they obtained delivery of possession of the land but were subsequently dispossessed by the defendants Nos. 1 to 6 in 1915. The defendants-respondents urged that they had obtained possession of the disputed land after having purchased it in execution of a rent decree against Naobhar Shah in 1915.

The learned Munsiff came to the finding that the plaintiffs-appellants had acquired title to the disputed land by virtue of their purchase but that they never obtained delivery of possession; in fact that they never were in possession of this disputed land.

Before the court of appeal these findings of fact were not challenged by either of them. The only question that was mooted there was one of limitation. The plaintiffs-appellants urged that the 12 years'' Rule applied and inasmuch as they had instituted the suit on the 28th February, 1909, they were well within the period. The defendants-respondents on the other hand urged that the special period of limitation prescribed by Article 3, Schedule III of the Bengal Tenancy Act applied and in support of this contention, the respondents relied particularly upon the case of Jaimanglabati Misrain v. Jharu Lal (1917) 2 Pat. L.J. 567. In this Court the same contention is urged before us and we are asked to hold that it is the special period of limitation that applies to the facts of this case.

Now it is quite clear that the facts found were that the plaintiffs had acquired by purchase a part of the holding of Naobhar Shah which consisted of 2 bighas 6 kathas only. Under the circum-, stances the plaintiffs could not possibly have become raiyats even if the provisions of Section 22 of the Bengal Tenancy Act were invoked. Further there is a distinct finding, and that finding was not challenged in the court of appeal that at no time were the plaintiffs dispossessed by the defendants. It seems to us that these two are the essential requisites for the application of Article 3, Schedule III of the Bengal Tenancy Act. The plaintiffs are neither raiyats nor were they dispossessed by the defendants. That being so, in our opinion, Article 3 of Schedule III of the Bengal Tenancy Act. does not apply.

It is urged however that the case of Jaimanglabati Misrain v. Jharu Lal (1917) 2 Pat. L.J. 567 supports the contention of the appellants. In that case the point raised was whether the Article applied only where the raiyat had been dispossessed by the landlord acting as such and the argument was on the basis that if the landlord did not say either expressly or impliedly to the raiyat "I am your landlord, you are my tenant, you must vacate the land" and then turned out the raiyat wrongfully, the Article would not apply. Their Lordships held in that case that such a narrow interpretation could not possibly be put upon Article 3. That is the only distinguishing feature of the case of Jaimanglabati Misrain v. Jharu Lal (1917) 2 Pat. L.J. 567. In other respects that case followed the ordinary principle that for the application of Article 3 of Schedule III of the Bengal Tenancy Act it must be shown that it was a raiyat who was dispossessed by the landlord. In view of the facts proved in this case we are decidedly of opinion that the plaintiffs were neither raiyats nor were they ever dispossessed; therefore Article 3 does not apply.

It is contended by the appellant that he is entitled to mesne profits from 1913 to the date of delivery of possession. It is clear that although he had acquired title to possession he did not take steps to get delivery of possession with respect to the property, and therefore up to the time when he filed the suit out of which this appeal arises it seems that he is disentitled from claiming mesne profits. With respect to the period after filing the suit, different considerations must apply. He comes to the court claiming possession of the disputed property and showing title. This is disputed by the defendant. Eventually he succeeds in proving that he had title to the property and that he was entitled to possession. In that view we think that he is entitled to imesne profits from the date of the filing of the suit up to the date of the delivery of possession.

The appeal will therefore be allowed with costs throughout and the decree of the learned Subordinate Judge set aside and the decree of the learned Munsiff restored, with this exception that there will be an enquiry held by the learned Munsiff with respect to what would be the mesne profits from the date of the filing of the suit up to the date of the delivery of possession.

Ross, J.

I agree.