Sheikh Gowher Ali vs Sheikh Enayat Ali

Chamier, C.J.—The only question in this appeal is whether the suit is governed by the provisions of Article 3, part I, Schedule III of the Bengal Tenancy Act, which provides a period of two years for a suit to recover possession of land claimed by the plaintiff as an occupancy raiyat or under-raiyat. The two years are to run from the date of dispossession. The facts found are that the plaintiffs are tenants of an area of about 51 bighas. The defendant owns a 12-annas 6-pies share as ft Co-sharer malik of the village, The plaintiffs case was that at the survey proceedings the defendant got his name entered as milkdar in respect of the land in question, suppressing the fact that the plaintiffs were raiyats of the land. The Settlement Authorities entered the land as being in has possession of the defendant. The plaintiffs state that on the strength of the entry made by the Settlement Authorities, the defendant ejected them from their jote. It has been found that the suit was brought about seven years after the date on which the plaintiffs were dispossessed. The contention is that the special period of limitation provided by the Bengal Tenancy Act does not apply, inasmuch as the defendant when dispossessing the plaintiffs was not acting in the capacity of landlord The Court of first appeal assumed that the suit was governed by the 12 years'' rule of limitation and did not consider the question in what capacity the defendant had ejected the plaintiffs. The learned Judge of this Court before whom the case came held that the defendant, when dispossessing the plaintiffs, was acting as purchaser of the jote right There appears to be no direct evidence of this but whether it was so or not, I am of opinion that the suit is governed by the two years'' rule of limitation. The same question arose in Letters Patent Appeal No. 53 of 1916 Kunti Dai v. Jharu Lal Das Mazumdar 40 Ind. Cas. 907 Infra : 2 P.L.W. 16 : (1917) Pat. 247 and we then held that Article 3 of Schedule III to the Bengal Tenancy Act applied to a ease of this kind, whether the land lord when dispossessing the raiyat acted in the capacity of landlord or not. In my opinion the pre sent case is covered by the decision in the case cited and, therefore, this suit should have been dismissed. I would allow this appeal, set aside the judgment of the learned Judge of this Court and of the Court of first appeal and restore the decision of the Court of first instance with costs of both -hearings in this Court and in the lower Appellate Court.

Mullick, J.

I agree.