Citation Codes

Equivalent Citations

citation codes

Case Number

Appeals Nos. 1099 to 1103 of 1932

Judges

Mohammad Noor, J.

Acts

rule of limitation of the Bengal Tenancy Act,
Article 3, Sch. 3, Ben. Ten. Act.6.

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Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

These are five analogous second appeals arising from suits brought to recover possession of alleged occupancy (raiyati) lands in village Rampur Shamchand Shaistabad. The plaintiffs (now appellants) claimed they were dispossessed of these lands by the defendants in consequence of an order under Section 145 of the Criminal Procedure Code dated 17 March 1927. The suits were instituted on 18 March 1929 (the 17th of March having been a Sunday), which the plaintiffs relied upon as within the applicable limitation period.

The lands had previously been submerged and are recorded to have reappeared about 1920; the parties disputed how long they were submerged. Plaintiffs claimed they continued in possession until dispossessed when the defendants took settlement of the lands from the landlords. Defendants alleged the lands were diluviated, reappeared in about 1920, plaintiffs did not cultivate thereafter, and the landlords took possession and settled the lands with the defendants.

At first instance the learned Munsif found the suits in time (noting the re-appearance date) and held the plots were the plaintiffs' occupancy lands, decreeing the suits. On appeal the District Judge reversed, holding that after reappearance the landlords had taken possession and that plaintiffs were not in possession; the District Judge applied the special limitation in Article 3, Schedule 3 of the Bengal Tenancy Act and dismissed the suits. The plaintiffs instituted these second appeals against that reversal.

Legal Issues Presented

Whether the special rule of limitation in Article 3, Schedule 3 of the Bengal Tenancy Act is attracted only where dispossession is by the landlord personally (or his servant), or whether dispossession by a person who has obtained settlement from the landlord also amounts to dispossession "by the landlord".
Whether the special limitation period applies only to cases of actual dispossession by the landlord (an active turning out of the tenant), or whether it also applies where there has been mere discontinuance of the tenant's possession (for example, where tenants did not re-enter after land re-appeared and landlords subsequently occupied it).

Arguments of the Parties

Appellants' Arguments

To attract the special rule of limitation in the Bengal Tenancy Act the dispossession must be by the landlord or his agent; dispossession by a third person who claims to have taken settlement from the landlord is not dispossession by the landlord.
The special limitation should apply only where there is actual dispossession; it should not apply where there has been a discontinuance of possession by the raiyat (i.e., the plaintiff ceased to cultivate and did not actively continue possession), as the District Judge's finding was that plaintiffs discontinued cultivating and were not actively dispossessed by the landlords.

Respondents' / Defendants' Case (as reflected in the opinion)

After the lands re-appeared (about 1920) the plaintiffs did not continue to cultivate or otherwise assert possession; the landlords took possession and then settled the lands with the defendants, who thereby claim title/possession.
The District Judge accepted these facts and treated the landlords' entry/settlement as giving rise to dispossession for the purposes of the special limitation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
24 Cal 40	That dispossession effected by a person armed with a settlement from the landlord is to be treated as dispossession by the landlord.	The court cites this authority as supporting the proposition that a third person acting under a landlord's settlement who turns out a raiyat effects dispossession by the landlord; the court agreed with this view.
9 CWN 54	Same principle as above: dispossession by a person with landlord's settlement counts as dispossession by the landlord.	The court references this case alongside 24 Cal 40 and treats it as authority supporting that dispossession by a person holding a settlement is dispossession by the landlord; the court respectfully agrees with these decisions.
1933 Cal. 898	Also cited for the view that dispossession by a person holding settlement from the landlord is to be regarded as dispossession by the landlord.	The court describes this as a recent decision taking the same view, and the court concurs with it.
1920 Cal. 348 (Mookerjee, A.C.J.)	Clarifies the distinction between 'dispossession' (the coming in of a person and the driving out of another) and 'discontinuance' (the going out of the person in possession and being followed by another).	The court adopts this distinction to determine that mere discontinuance of possession by plaintiffs (not active ejection) would not constitute dispossession within the meaning of Article 3, Schedule 3.
1916 Cal. 751	Earlier exposition relied upon to define 'dispossession' versus 'discontinuance'.	Referenced (via the 1920 Cal. 348 passage) to support the definitional distinction; the opinion uses this lineage of authority in its reasoning.
1933 Pat 224 (Division Bench)	Held that Article 3, Sch. 3, Bengal Tenancy Act applies only to cases of actual dispossession by the landlord; if tenants did not take possession after reappearance, the landlord's taking it cannot be treated as dispossession under that Article.	The court cites and follows the reasoning of the Division Bench: where plaintiffs had not taken possession after reappearance, the defendant's subsequent taking of possession would not amount to dispossession within Article 3, Sch. 3.
1926 Cal. 350	Held that Article 3, Sch. 3 requires actual dispossession of the raiyat by the landlord; it does not extend to cases of constructive dispossession where the landlord never allowed the tenant to take possession.	The court referred with approval to this decision to support its conclusion that the special limitation cannot be applied where there was no actual dispossession of the raiyat after reappearance of the land.

Court's Reasoning and Analysis

The court addressed the two principal contentions raised by the appellants in turn.

First, as to whether dispossession by a person who claims settlement from the landlord counts as dispossession by the landlord, the court held that there is no force in the appellants' argument that dispossession must be by the landlord personally. The court reasoned that if a person, armed with a settlement from the landlord, turns out the raiyat, that act is "obviously by the landlord." The court relied on decisions cited (24 Cal 40; 9 CWN 54; 1933 Cal. 898) and expressly agreed with them.

Second, and dispositive, the court accepted the appellants' argument distinguishing "actual dispossession" from mere "discontinuance" of possession. The District Judge's findings were that when the lands reappeared the landlords divided the lands among themselves and made settlement with the defendants, and that plaintiffs were not in possession thereafter because they had discontinued cultivation. The court emphasized the legal distinction (citing 1920 Cal. 348 and 1916 Cal. 751): 'dispossession' implies an active coming in of a person and driving out of another; 'discontinuance' implies the tenant went out and was followed by another. The court held that a division of land among landlords or a landlord's taking of land which had remained unoccupied by tenants after reappearance does not, by itself, constitute dispossession of the raiyat for the purposes of Article 3, Sch. 3 of the Bengal Tenancy Act.

The court referred with approval to 1933 Pat 224 and 1926 Cal. 350, which support the narrower construction that the special limitation applies only to actual dispossession by the landlord and not to constructive or deemed dispossessions where the raiyat never obtained possession after reappearance. The court also noted the relevance of Section 87 of the Bengal Tenancy Act (dealing with abandonment and special two-year limitation when statutory formalities are observed) to reinforce that the legislature intended a distinct, limited application of the special limitation period where the landlord actively and formally enters in accordance with prescribed procedures.

Applying these principles to the District Judge's findings (that plaintiffs discontinued possession and landlords then took settlement), the court concluded the special limitation did not apply. Where the plaintiffs' version of events was rejected by the appellate court (i.e., that they had been actually dispossessed), the record supported the conclusion that there was no active dispossession by the landlords within the meaning required by Article 3, Sch. 3.

Holding and Implications

HOLDING: All the second appeals are allowed. The decree of the lower appellate Court (District Judge) is reversed and the decree of the Munsif is restored. The appellants are awarded their costs in this Court and in the Court of appeal below. The Court declined to certify the case as fit for a Letters Patent appeal.

Implications: The direct consequence is that the plaintiffs' original decrees in the courts below (the Munsif's decrees) are restored and the plaintiffs obtain costs. The opinion limits the application of the special two-year limitation in Article 3, Schedule 3 of the Bengal Tenancy Act to cases of actual dispossession by the landlord (or by a person acting under the landlord's authority via settlement) and excludes cases of mere discontinuance of possession by the tenant followed by landlord occupation. The court did not announce a broader or novel principle beyond applying settled authorities; therefore, no new legal precedent beyond the application of existing authorities is purportedly created by this decision.

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Har Dayal Bhagat v. Nathuni Bhagwat .

1. The points for determination in all these five analogous second appeals are the same. The plaintiffs of the respective suits, who are appellants sued for recovery of possession of their alleged occupancy lands from which according to them they were dispossessed by the defendants in consequence of an order under Section 145 of the Cr PC, passed on 17th March, 1927. The defendants claimed to have taken settlement of these lands from the landlords. The suits were instituted on 18th March, 1929, within two years of the order, the 17th March of that year being Sunday. The lands involved in all the suits, which are situated in village Rampur Shamchand Shaistabad, were submerged under water and remained so for sometime and then came out about the year 1920. The extent of this submersion was in controversy between the parties. According to the plaintiffs the lands were under water for only about two years and that they continued in possession thereof till they were dispossessed by the defendants who took settlement of these lands from the landlords. According to the defendants the lands were completely diluviated and re-appeared in about 1920 and thereafter the plaintiffs did not care to cultivate them, and, the landlords took possession thereof and settled them with these defendants. The question of the extent of submersion, which has been dealt with in some detail by the learned Munsif and also by the learned District Judge, does not seem to me of any importance.

2. It is admitted that the lands were under water and the question for how long they remained so is not very material for the purposes of the suits. We get it that they re-appeared in 1920. The learned Munsif was unable to find when the plaintiffs were actually dispossessed and as the suits were instituted within 12 years of the re-appearance of the lands has held the suits to be in time. He refused to apply special limitation provided by Article 3, Sch. 3, Ben. Ten. Act, as according to him the dispossession was not by landlords. He found that the plots in suits were the occupancy lands of the plaintiffs and therefore decreed the suits. On appeal the learned District Judge has reversed this decision. While dealing with the question whether the identity of the lands has been established, he seems to be somewhat doubtful, but has left the question observing that in view of his decision on another point (limitation) it was not of much importance. I do not think there is any question about the identity of the lands involved in the suits. The plaintiffs have sued for specific plots giving their survey numbers. These very plots are claimed by the defendants on the basis of settlement to them by the landlords. No doubt, the first patta of 1920 did not specify the plot numbers, but there was a supplementary patta specifying the plot numbers which are the plots in suits, and these plots, according to the record-of-rights were the occupancy lands of the plaintiffs. In one of the suits (No. 58 of 1929), the plaintiffs claimed the lands as having been purchased by them from the recorded raiyat. There was no question about the genuineness and validity of this sale. Therefore the question of identity of the lands did not arise in these suits at all and there is no necessity to remand the cases for further finding on this point. Now, the learned District Judge has found as a fact that immediately after the lands came out of water the landlords took possession of them and that since then the plaintiffs were not in possession. On these findings he applied special limitation and as the suits were instituted more than two years after the admitted re-appearance of the lands he dismissed the suits. The plaintiffs have preferred these second appeals.

3. Two points have been urged before me by Mr. Rai Tribhuan Nath Sahay, who appears on behalf of the appellants. One is that in order to attract the special rule of limitation of the Bengal Tenancy Act, the dispossession must be by the landlord or his agent. The dispossession by a person who claims to have taken settlement of the land from the landlord is not dispossession by the landlord. The second is that in order that the special limitation be applied there must be actual dispossession and not discontinuance of possession of the raiyat, and as in this case the finding is not that there was any act of dispossession by the landlords, but that on the re-appearance of the lands the plaintiffs discontinued cultivating them and then they were taken possession of by the landlords the special limitation does not apply.

4. As to the first point I must say at once that there is no force in it. In my opinion, a person who goes on the land armed with a settlement from the landlord and turns out the raiyat and dispossesses him such dispossession is obviously by the landlord. This seems to be the view taken in 24 Cal 40(1) and 9 CWN 54(2), and in a very recent decision in 1933 Cal. 898(3), and I respectfully agree with them I do not think that in order to apply the special limitation it is necessary that dispossession of the raiyat must be by the landlord himself or by his hired servant. If the landlord authorizes a third person by making settlement of the land with him to dispossess a raiyat and that person armed with that settlement dispossesses him, the dispossession is by the landlord. The second contention of the learned advocate however must prevail. The finding of the learned District Judge is clear that when the lands came out of water the landlords divided the lands among themselves and then made settlement with the defendants. Now, a division of land by the landlords among themselves by itself cannot and does not constitute dispossession of the raiyats. Lands are divided among landlords without disturbing the possession of the raiyats in any way. The learned District Judge however seems to find that the conduct of the landlords brought about the dispossession of the plaintiffs. The conduct referred to is the act of settlement by the landlords. There is no allegation that the plaintiffs were actually dispossessed by the defendants. The allegation is that they themselves gave up cultivating the lands. The distinction between dispose possession and discontinuance of possession was pointed out by Mookerjee, A.C.J, in 1920 Cal. 348(4), His Lordship observed as follows:

Ab was pointed out by this Court in 1916 Cal. 751(5) the term ‘dispossession’ implies the coming in of a person and the driving out of another from possession, while ‘discontinuance’ implies the going out of the person in possession and his being followed into possession by another.

5. The question seems to have been considered in a somewhat similar case by a Division Bench of this Court in 1933 Pat 224(6), where also the lands involved had become diluviated and had come out of the river and then were taken possession of by the landlord. Kulwant Sahay, J., while referring to this aspect of the case observed as follows:

Article 3, Sch. 3, Ben. Ten. Act, applies only to cases of actual dispossession by the landlord. If the possession of the tenants ceased on account of the land being submerged under water, and if after reappearance of the land there was no actual taking of possession by the raiyats and no dispossession by the landlords, Article 3, Sch. 3, Ben. Ten. Act, would not apply. In order that there should be dispossession by the landlord there should first have been possession of the raiyats; but where the plaintiff had not taken possession after reappearance, the fact that the defendant succeeded in taking possession would not amount to a dispossession within the meaning of Article 3, Sch. 3, Ben. Ten. Act.

6. His Lordship referred with approval to a decision of the Calcutta High Court in 1926 Cal. 350(7), where it was held that in order that Article 3, Sch. 3, Ben. Ten. Act, may apply to a suit for recovery of raiyati land, there must be actual dispossession of the raiyat by the landlord. The operation of the article cannot be extended to the cases of so-called constructive dispossession where the landlord has never allowed the tenant to take possession of the land. It is not the case of the defendants that the plaintiffs obtained possession of the lands and then they were dispossessed. Their case is that the plaintiffs were never in possession of the lands after their reappearance. No doubt, it was the plaintiff's case that they were in possession and were dispossessed in consequence of the order under Section 145 of the Cr PC, but this was negatived by the lower appellate Court. If the plaintiffs' case be accepted, the suits are obviously within time even under the special law of limitation; but according to the finding of the learned District Judge the possession of the plaintiffs was discontinued on account of the lands having been submerged under water and then the landlords took possession of them after their re-appearance. In such a case the special law of limitation will not apply. This view seems to be supported by reference to Section 87 of the Ben. Ten. Act, which deals with abandonment of holdings where, apart from Article 3, Sch. 3 a special period of limitation of two years is provided for a suit for recovery of possession by a raiyat of an abandoned holding when the landlord enters it after observing the formalities prescribed therein. It is clear that if he enters the holdings without performing the formality the special limitation will not apply. If the legislature intended that there should be the same period of limitation for suits by a raiyat to recover possession of land both when he is dispossessed by the landlord and when the landlord enters upon the land treating it as abandoned without observing the formality there was no necessity of restricting the special period of limitation only in those cases in which the entry is in accordance with the provision of the section.

7. The result is that all the appeals are allowed. The decree of the lower appellate Court is reversed and that of the Munsif restored.

8. The appellants are entitled to their costs both in this Court and in the Court of appeal below. It is to be noted that there is no appearance in Second Appeals Nos. 1100 to 1103. I am asked to certify that this is a fit case for a Letters Patent appeal. I decline to do so as the case seems to be clear.

9. Appeals allowed.

Har Dayal Bhagat v. Nathuni Bhagwat .

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Respondents' / Defendants' Case (as reflected in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Har Dayal Bhagat v. Nathuni Bhagwat .

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