Patna High Court
Bateshwar Prosad vs Sir Kameshwar Singh Bahadur And Ors. on 17 July, 1951
Equivalent citations: AIR1952PAT127, AIR 1952 PATNA 127, ILR 30 PAT 1123
JUDGMENT Lakshmikanta Jha, C.J.
1. This is an appeal by the plaintiff from a decision of the Additional District Judge of Purnea, dated the 5th of March 1948.
2. The only question for consideration is whether the suit is governed by the special rule of limitation under Article 3, Schedule III of the Bihar Tenancy Act.
3. The facts giving rise to this question may be shortly stated as follows: The land in dispute originally belonged to one Ritoo Rao. The plaintiff is the purchaser of the suit land by a private treaty from the original tenants. Ignoring the sale, the landlord brought a suit for rent in the year 1931 against the original tenant and got an ex parte decree, and in execution of that decree he purchased the right, title and interest of his judgment-debtor in the holding of which he got delivery of possession through Court on the 14th of June 1938. Thereafter he settled the land with the defendants second party. The present suit was instituted on the 21st of December 1945, for recovery of possession on the ground that the Court sale was not binding on the plaintiff. It is contended before us that the suit is governed by the ordinary law of limitation, and not by the special rule of limitation, and in support of this contention reliance has been placed upon a Special Bench decision of this Court in 'Gajadhar v. Ram Charan', 9 Pat 788. In my opinion, the case is fully covered by the decision of the Special Bench and the appeal ought to be decreed.
4. The facts of 'Gajadhar Rai's case' 9 Pat 788, were shortly these : The landlord instituted a suit for arrears of rent in respect of a holding and in that suit only some members of the family were impleaded as defendants, although other members of the family were also interested in it. In execution of the decree the right, title and interest of the judgment-debtors were sold, but the members of the family who were not parties to the suit were also dispossessed through the process of Court. Thereafter, those members of the family who were not parties to the suit brought a suit for declaration of title and recovery of possession in respect of their interest in the holding. It was found that the decree in execution of which the sale has taken place had the effect of a money decree and that the right, title and interest of the plaintiff of that suit were not at all affected. The question for consideration before the Special Bench was whether the special rule of limitation prescribed by Article 3, Schedule Ill of the Bihar Tenancy Act would apply. Kulwant Sahay, J. who delivered the judgment of the Special Bench, on a review of the case-law from the earliest times held 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 III, of the Bihar Tenancy Act. This decision was followed in several other cases of this Court and I need refer only to one of them, namely, 'Jaga Singh v. Basdeo Singh', AIR (27) 1840 Pat 581, in which it was held that if a landlord as auction-purchaser dispossesses a tenant, whose interest has not been affected by the sale through the process of Court, the special rule of limitation does not apply.
5. There are some decisions of this Court, however, where the Special Bench case has been sought to be distinguished and special rule of limitation applied and I would refer only to the case of 'Mt. Deorati Kuer v. Dasarath', 21 Pat L T 374, which has been relied upon by the respondents. Meredith, J. held that the special rule of limitation applied to the facts of the ease before him and distinguished the Special Bench case on the ground that the dispossession in the case before him was not through Court but "forcibly years later as a result of the plaintiff's conviction in the criminal case." Therefore, in my opinion, the ruling of the Division Bench in 'Deorati Kuer v. Dasarath', 21 Pat L T 374 has no application to the facts of the case before us.
6. An examination of the case law relevant to the point for decision before us shows that two lines of reasoning have been adopted in applying the rule of limitation. One line of reasoning is that when there is a sale in execution of money decree and the dispossession is by the landlord through the instrumentality of the Court, then the person dispossessed is not a raiyat or an under-raiyat, nor the dispossessor a landlord as such, and, therefore, in such a case the special rule of limitation does not apply. The case of 'Gajadhar Rai v. Ram Charan Gope', 9 Pat 788 is a type of this class of cases. The other line of reasoning is that if the landlord dispossesses a person interested in a holding, not through the instrumentality of Court, but by his own force, he is entitled to plead special rule of limitation and defeat the suit if brought more than two years after the date of dispossession. The Case of 'Mt. Deorati Kuer v. Dasarath', 21 Pat L T 374 is a type of this class of cases. Therefore, even if a landlord gets a symbolical possession through Court, but later on succeeds in getting khas possession by his own force, the special rule of limitation would apply and the tenant's suit can be defeated if brought beyond two years of the date of dispossession because dispossession in such a case is directly by the landlord. In the present case it cannot be said that the landlord as such dispossessed the plaintiff, nor did the plaintiff seek to recover possession in his capacity as a raiyat. I may observe that when a plaintiff brings a suit for recovery of possession, such a suit is not by a raiyat as such brought against a landlord but a suit for recovery of possession brought against a trespasser. Therefore, in my opinion, Article 3 of Schedule III of the Bihar Tenancy Act, which lays down that the suit must be for recovery of possession of land claimed by the plaintiff as a raiyat, does not apply to such a case.
7. Mr. Angad Ojha has strongly relied upon the decision of a Division Bench of this Court in 'Hitlal v. Kameshwar Singh', 29 Pat, 1031 and his contention is that we ought to follow the decision in that case. It seems to us that the Division Bench laid down a proposition of law on a misconception of the facts of the Special Bench case. In any case, the view taken by the Division Bench is contrary to the decision of the Special Bench and we are in case of such difference of opinion bound to follow the decision of the Special Bench in preference to the decision of the Division Bench. A review of the case law relating to the point for decision before us shows that the law is that the landlord if he becomes a purchaser in execution of a money decree of the right, title and interest in the holding of his judgment-debtor in which the latter has no interest, may dispossess the person in possession as auction-purchaser 'qua' landlord either by his own act or by the act of his agents or servants or through a settlee. He may also cause dispossession through the instrumentality of the Court. If the dispossession is through the instrumentality of the Court, then the landlord uses not his own power in causing dispossession but the power of the Court. In such a case it cannot be said that the dispossession is by the landlord as such and, therefore, the application of Article 3, Schedule III, would not be attracted. But the tenant's remedy would be barred if the dispossession is by the landlord by his own act or by the act of his agents or servants or settlees if the suit is brought beyond two years of dispossession. Therefore, even if he takes a symbolical delivery of possession and later on uses his own power in taking physical possession, Article 3 will apply and the right of the person dispossessed would be barred if the suit is not brought within two years of the date of the actual dispossession.
8. In the appeal before us, as already observed, dispossession was by the landlord as auction-purchaser and through the instrumentality of Court; therefore, the general law of limitation would apply. The appeal is accordingly allowed and the suit decreed vide order no. 9 D/- 16-8-51 with costs throughout, with mesne profits to be ascertained toy an appropriate proceeding.
9. Narayan, J.
9 I agree as I have no hesitation in holding that this suit should be decided on the principle laid down by the Special Bench of this Court in 'Gajadher Rai v. Ram Charan', 9 Pat 788. The two decisions relied on by Mr. An-gad Ojha, for the respondents, need not trouble us at all. Meredith, J., who delivered the judgment of the Division Bench in 'Mt. Deorati Kuer v. Dasrath Dubey', 21 Pat L T 374 observed that, so far as the facts of the case before him were concerned, it was quite obvious that the dispossession was not through Court at all and that it had taken place several years after delivery of possession. In the penultimate paragraph of the judgment he no doubt observed as follows :
"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."
This observation is of the nature of an obiter dictum in view of what he had said before, that is, that it was quite obvious that the dispossession had not taken place through Court. Even while making this observation he pointed out that the tenancy had continued.
10. The other decision 'Hitlal v. Kameshwar -Singh', 29 Pat 1031 has already been referred to by my Lord the Chief Justice, and it is obvious from the perusal of the judgment of Ray J., who delivered the judgment in this case, that the facts of the Special Bench case were taken to be different from what they actually were. His Lordship Ray, J., observed that the Special Bench decision was of no assistance to the appellant as in that case the sale was in execution of a rent decree and the entire holding had passed by the sale, though, as a matter of fact, it appears from the perusal of the facts as given in the Special Bench judgment, that only some of the tenants had been sued.