Mt. Deorati Kuer vs Dasarath Dubey and Another

Meredith, J.—This case has been referred to a Division Bench by a learned Judge sitting singly. The appeal is by the landlord, defendant 1, in the suit, and the only point that arises is one of limitation, namely whether the suit is governed by the special rule of limitation under Article 3, Schedule 3, Bihar Tenancy Act, which provides two years'' limitation from the date of dispossession in the case of a suit to recover possession of land claimed by the plaintiff as a raiyat or an under raiyat, or governed by the general rule of limitation whereby twelve years is provided under Article 112, Limitation Act. The respondent brought a suit for recovery of possession of a sarahmoayan holding bearing khata No. 311 in village Chorain in the Shahabad District. This holding originally belonged to defendant 3 and the plaintiff purchased it on 9th June 1923. Later on, the landlord (defendant 1) brought a rent suit against defendant 3 (the original tenant), obtained a decree, and in execution of that decree obtained dakhal dehani from the Court on 12th September 1929.

The plaintiff sued on the allegations that he was not a party in that suit, knew nothing about it and was not dispossessed by the dakhal dehani. In 1933 however a criminal case was brought against the plaintiff by defendant 2, a servant of defendant 1, in which the plaintiff was convicted and his conviction was maintained by the High Court in revision on 18th December 1933. Taking advantage of this decision the landlord dispossessed him on 30th December 1933.

The present suit was brought on 18tb December 1936.

If two years'' limitation applies, it would be barred by limitation. If twelve years, it would not. The Courts below came to concurrent findings that the ''decree obtained by the appellant against defendant 3 was only a money decree that the plaintiff remained in possession after the delivery of possession by the Court and ''that he was only dispossessed, as alleged by "him, after his conviction in the criminal case. The learned Munsif held that the case was governed by two years'' limitation under Article 3, Schedule 3 and so the claim was barred by limitation. The learned Subordinate Judge was of opinion however that the case was governed by Article 142 and twelve years'' limitation and so he decreed the suit.

The basis for the decision of the learned ''Subordinate Judge was the Full Bench ruling of this Court in 9 Pat 7881 where it was laid down that where a landlord in execution of a decree for arrears of rent puts the ''holding to sale, purchases it himself and obtains delivery of possession through Court, such dispossession of the tenant is not a dispossession within the meaning of Article 3, Schedule 3, Ben. Ten. Act, 1885. The learned ''Subordinate Judge in holding that this decision was applicable to the case seems to have forgotten his own finding that the ouster was not under the decree but took place forcibly years later as a result of the .plaintiffs conviction in the criminal case. It is quite obvious that in the present case the "dispossession was not through Court at all and the Full Bench ruling has no application. It is argued for the respondent that though dispossession may not have been through Court, still it was by the landlord, not as such, but as auction-purchaser, and, ''that where the dispossession is by the landlord, qua not landlord but as auction-purchaser, the special two years'' limitation does not apply.

It is sought to make Gajadhar Rai v. Ram Charan Gope AIR (1980) Pat 256, a Full Bench case, authority for this proposition, but it is not such authority. It merely laid down that the special limitation did not apply where both features were present, namely dispossession through Court, and as auction-purchaser. The judgment in this Full Bench case was delivered by Kulwant Sahay J., and what Kuiwarrt Saihay J. opinion on the point in question really was is to be found clearly expressed in Mahadeo Rao v. Pargash Rai AIR (1927) Pat 43 in which case this learned Judge observed, no doubt by way of obiter:

If in execution of the decree, only the right, title and interest of the judgments debtor was sought to be delivered to the purchaser and after taking possession of the holding which represented the right, title and interest of the judgment-debtor, the purchaser subsequently dispossessed the plaintiff, then in that case Article 3 of Schedule 3 to the Ben. Ten. Act would have applied.

The point which has been raised was considered at length by the Calcutta High Court in a Letters. Patent Appeal, Satis Chandra Bandopadhya and Others Vs. Hashem Ali Kazi and Others, , where it was held that the special two years'' limitation applied even where the landlord took possession as auction-purchaser, and it was pointed out that Article 3, Schedule 3 does not provide, even by implication, that dispossession must be by the landlord as such. The same view was taken by the Calcutta High Court in Amiruddin Sarkar Vs. Nisaruddin Sarkar and Others, where the Court held that dispossession by the landlord as auction-purchaser comes under the provisions of special law of limitation under Article 3, Schedule 3, Ben. Ten. Act.

If I may say so, these decisions appear to me to express the correct view. In any case, however, I think that the point does not really arise in the present case, since the finding is that the decree obtained against the original tenant was only a money decree and the tenancy continued. The landlord therefore was auction-purchaser only of the right, title and interest of the original tenant (defendant 3), whatever that might have been, and not of the holding or of the tenancy right of the plaintiff.

Therefore, in dispossessing the plaintiff, the dispossession was not really in, the capacity of auction-purchaser of his interest, but merely upon the excuse of being an auction-purchaser, just as it was upon the excuse of having got the decision of a Criminal Court in the landlords'' favour. In my opinion this is clearly a case where the special limitation under Article 3, Schedule 3, Bihar Ten. Act, is applicable. I would therefore allow the appeal and dismiss the suit with costs throughout.

Fazl All, J.

I agree.