Kashi Prasad Singh and Others vs Ram Prasad Singh and Others

Sinha, J.—This is a plaintiffs'' second appeal from the concurrent decision of the Courts below dismissing their suit for possession in respect of 8 bighas and odd kathas of land situate in plot No. 405 in Khata No. 236 in village Ainjani Ghat which was originally Tauzi No. 8783 but which by a collectorate partition, was carved out into separate tauzis including tauzi No. 14539 which was allotted to two persons called Ramraman and Rantiraman. The holding comprised an area of 30.32 acres, including Tauzi No. 405 with an area of 11.68 acres. The original raiyats executed a usufructuary mortgage bond in respect of 9.13 acres out of plot No. 405 to the plaintiffs. After the collectorate partition, Ramraman and Kantiram sued for arrears of rent in respect of portions of plots Nos. 405 and 406, with a total area of 16 bighas 3 kathas and odd, some of the original raiyats. A decree for rent was passed on 28-51929, and, in execution, the area aforesaid was auction-purchased by defendant 1. Delivery of possession was taken through Court on 26-2-1933. There was a proceeding u/s 145, Criminal P.C., in respect of the land aforesaid, and the criminal Court decided in favour of the auction-purchaser. The judgment in the proceeding u/s 245, Criminal P.C, is dated 9-7-1938. The defendants-first party settled the land with the defendant-second party on 31-1-1941. The suit was commenced on 5-7-1941, by the plaintiffs as mortgagees on the ground that they had been dispossessed by the defendants though the decree, in execution of which the property had been sold, had only the effect of a money decree, inasmuch as all the?tenants had not been impleaded in the rent suit.

The suit was contested by the defendants on the ground that it was barred by limitation in view of the special provisions of the Bihar Tenancy Act, and that the purchase by the defendant first party was in execution of a rent decree properly so called.

The Courts below have dismissed the suit, holding that the special limitation of two years applied to it and, as the plaintiffs had instituted the suit more than two years after the delivery of possession in 1933, it was beyond time. They have also held that the decree, in respect of which the execution proceedings had been taken and the property sold had the effect only of a money decree, inasmuch as all the tenants had not been impleaded in the rent suit.

Hence, in this appeal the only question in controversy between the parties is whether or not the suit is beyond time in view of the provisions of Article 3 of Schedule III, Bihar Tenancy Act. The lower appellate Court has relied upon a Division Bench ruling of this Court in Mt. Deorati Kuer Vs. Dasarath Dubey and Another, for its conclusion that the present suit is within the mischief of Article 3 of Schedule Ill, Bihar Tenancy Act.

In my opinion, the learned Additional District Judge has completely misdirected himself in coming to that conclusion. Article 3 of Schedule 1ll, Bihar Tenancy Act. in terms applies to a suit "to recover possession of land claimed by the plaintiff as a raiyat or an under, raiyat." If this is a suit by a raiyat to recover possession of the land as such, the decision of the learned Additional District Judge may be right. But, on the face of the facts as stated above, it cannot be said that this is a suit by a raiyat to recover possession of the land as against his landlord. The plaintiffs in terms sue for recovery of possession on the ground that they have been dispossessed by the defendants as a result of the proceedings u/s 145, Criminal P.C.

But the finding of the lower appellate Court is that the dispossession took place not after the judgment in the case in 1938 but that it took lace as a result of the delivery of possession given in July 1933, to the auction purchaser. In the first place, the decision of the Pull Bench of this Court in Gajadhar Rai Vs. Ram Charan Gope and Others, would directly apply to the facts of this case, even assuming that this was a. suit by a raiyat as such. If the lower appellate Court had found as contended by the plaintiffs that the dispossession took place after the decision of the Section 145 case, the Full Bench ruling of this Court, referred to above, may not have applied to this case. But, on the findings arrived at by the lower appellate Court that the dispossession took place as a result of the delivery of possession, given through Court to the auction-purchaser, the decision of the Division Bench of this Court, referred to above, is out of the way In that case the dispossession was not as a result of delivery of possession through Court but as a result of the landlord dispossessing the raiyat taking advantage of a criminal case in which the raiyat had been convicted and sent to jail.

But in my opinion, neither of the two cases is. strictly in point so far as the facts and circumstances of this case are concerned. As already indicated, this is not a suit by a raiyat against his landlord to recover possession of his raiyati interest; this is a suit by a mortgagee in possession from the original raiyat. The defendants dispossessed the plaintiffs, according to the findings of the Courts below, as a result of the delivery of possession through Court after the auction-purchase in execution of the decree for rent. To such a case, the provisions of Article 3 of Schedule. in, Bihar Tenancy Act, are wholly in-applicable. Mr. L.K. Jha, who followed Mr. Lal Narayan Sinha, has not been able to place any decision before us to the effect that a mortgagee from the raiyat is within the mischief of this article. It must, therefore, be held that this is an ordinary suit by a mortgagee in possession, seeking recovery of possession of a portion of the mortgaged property against persons who have dispossessed them without any right. To such a suit, the general rule of limitation laid down in the Limitation Act must apply, and, as found by the Courts below, applying'' that general rule, the suit is within time.

As the only ground on which the decision of the Courts below has gone against the plain, tiffs is erroneous in law, the suit must be decreed with costs throughout. The appeal is accordingly allowed, and the judgment and decree of the Courts below set aside.

Mahabir Prasad J.

I agree.