Dispossession by landlord as auction-purchaser through instrumentality of Court is not dispossession within meaning of Article 3, Schedule III of Bihar Tenancy Act.

Lakshmikanta Jha, 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/s. 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 Rais 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/s. 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/s. 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 plaintiffs conviction in the criminal case." Therefore, in my opinion, the ruling of the Division Bench in Deorati Kuer V