JUDGMENT
Narayan, J.
1. This is a defendant’s appeal arising out of a suit for declaration of title and recovery of possession with regard to 6 bighas 1 Katha of raiyati land. This land was the property of the plaintiff, and in execution of a money decree against him an area of 7 bighas and odd, including the disputed land, was purchased by the proprietor of a concern known as Bhikhanpur and Jhapaha Concern. This sale took place on the 19th November, 1931 and it was followed by a symbolical delivery of possession which was effected sometime in the year 1932. On the 7th June, 1933, the said concern reconveyed this disputed 6 bighas 1 katha to the plaintiff by a registered sale-deed. The plaintiff’s case was that in Sawan, 1349 Fasli, the defendant dispossessed him from the land on the strength of a sale-deed which had been executed in his favour by one Mr. Richardson, the managing proprietor of the Jhapaha concern, and hence be filed this present suit on the 5th April, 1945, with the prayer that his title on the strength of the sale-deed, dated the 7th June, 1933, be declared and a decree for khas possession with mesne profits be granted to him.
2. The claim was resisted by the defendant 1st party who pleaded ‘inter alia’ that the suit
was barred under the special limitation provided by Article 3, Schedule III of the Bihar Tenancy Act. This contention found favour with the Court of first instance which dismissed the plaintiff’s claim as time-barred. On appeal by the plaintiff the decision was reversed and the learned Subordinate Judge held that, on the facts alleged, the special limitation provided by the Bihar Tenancy Act could not be applied to this case. One of the defendants 1st party then came up in second appeal and the only point that has been pressed before us is that the Court below was wrong in holding that the special limitation of the Bihar Tenancy Act, could not apply to this case. The appellant’s learned counsel has relied on a decision of a Single Judge of this Court in ‘HAR DAYAL v. NATHUNI BHAGWAT’, AIR (22) 1935 Pat 372 and has strenuously contended that this must be taken to be a case in which the landlord had a hand in the dispossession of the raiyat and that as such the claim of the plaintiff should be rejected as time-barred. But it would appear from a perusal of the Judgment of the lower appellate Court that it was never alleged in this case that the defendants had dispossessed the plaintiff at the instigation of or in collusion and concert with the landlord The learned Subordinate Judge says that there, is absolutely no suggestion in the plaint that the dispossession was caused with the collusion of the landlord and that in the evidence there is no case that the landlord helped the defendants in dispossessing the plaintiff. In my opinion this finding is conclusive of the case, and conclusive of it against this present appellant. The appellant’s learned counsel could not con-tend that there is any misstatement of fact in the judgment of the lower appellate Court, and the irresistible conclusion, therefore, is that the landlord had no hand in the ouster. The decision relied on by the appellant’s learned Counsel, apart from being a decision of a Single Judge, is really to the effect that Article 3, Schedule III, applies only to cases of actual dispossession by the landlord, and it further says that if the possession of the tenant ceases on account of the land being submerged under water, and if after re-appearance of the land there is no actual taking of possession by the raiyats and no dispossession by the landlord, then Article 3, Schedule III, would not apply. There is no doubt an observation that if a landlord authorizes a third person by making settlement of the land with him to dispossess a raiyat and that person armed with the settlement dispossesses him, the dispossession is by the landlord. In this particular case it cannot be urged that there was a settlement by the landlord and the person armed with the settlement dispossessed the plaintiff. As was pointed out by Chamier, C.J. in ‘JAIMANGLABATI v. JHARU LAL’, 2 Pat L J 567, there are several decisions of the Calcutta High Court to the effect that where a landlord buys a raiyat’s holding and as purchaser of the raiyati interest dispossesses that raiyat, Article 3 does not apply to the suit by the dispossessed raiyat to recover his holding.
3. There is a recent decision of a Division Bench of this Court, ‘KAPTL SINGH v. FEDA ALI’, 25 Pat 695, in which the principles connected with Article 3, Schedule III, have been clearly explained. As was pointed out by His Lordship Ray, J., this Article will never apply
to a case in which the plaintiff cannot say to the defendant that “I am your raiyat”, and if it was otherwise, then it will amount to changing the general law of limitation in the case of suits for recovery of raiyati lands as against any body who comes and squats upon the land and claims it adversely simply because the latter has some sort of sympathy, however remote, from the landlord. In this particular case it cannot even be argued that the landlord was remotely concerned with the dispossession of the plaintiff. There is also an un-reported decision of this Court on this point, TOOKA SINGH v. DWARKA SINGH’, Second Appeal No. 983 of 1947, D/- 11-8-1949, to which I was a party. In this case the following well-known observation of His Lordship Sir Lawrence Jenkins, C.J., in ‘SMT. BASANTA KU-MARI v. NANDA RAM’, 17 Cal W N 1149, was quoted with approval:
“As between the plaintiff and the principal defendants there was no relationship of landlord and tenant, so that as between them the article would not apply and it is only by importing the landlord and saying that he had a hand in the ouster that any suggestion can be made that this rule of special limitation governs this case.”
His Lordship the Chief Justice further observed
in this case:
“This theory of constructive dispossession by landlords has been carried too far, and we are not disposed to encourage the idea that, because it can be said that the landlord has favoured the dispossession by others, there has been a dispossession by him.”
I need not repeat that, on the facts found in this particular case, it cannot even be urged that the landlord had favoured the dispossession. The learned Subordinate Judge seems to have accepted the evidence of P.W. 3 to the effect that after the purchase by the defendant he went to Mr. Richardson and complained to him as to why a sale-deed had been executed in favour of the defendants in respect of the disputed land and the answer of Mr. Richardson was that the settlement was made on account of the mistake of the ‘amlas’. This evidence having been accepted, it follows that the landlord never sanctioned or favoured this dispossession. In this view of the matter I do not find any merit in this appeal and I would dismiss it with costs.
4. LAKSHMIKANTA JHA, C.J.: I agree. The law, in my view, is that the operation of the special law of limitation as provided by the Bihar Tenancy Act would be attracted only when the landlord as such dispossesses a person in possession either by his own act or by the act of his agents or servants, or if a third person as settlee or transferee dispossesses the person in possession by the active co-operation and aid of the landlord. In any other case the special law of limitation cannot be held to be applicable. If the landlord being an auction-purchaser dispossesses a person who has got a right to hold as against him as purchaser, and the dispossession is through the instrumentality of the Court, then it cannot be said to be a case of dispossession by the landlord, and the general law of limitation would apply. In the present case, on the findings, the appellant has failed to prove that he was dispossessed either
by the landlord or by his agent or by his transferee with his active co-operation.