Dinobundhu Saha vs Lolit Mohun Moitra and others

The Plaintiff is the purchaser under a mortgage decree of the tenant right held by Defendant No. 2, and he states that he has been obliged to bring the present suit to obtain possession as against the Defendant No. 1 who happens to be the landlord of Defendant No. 2 because, in collusion with Defendant No. 2, he has prevented his obtaining the fruits of the possession which he acquired under what is known as symbolical possession as in auction-purchaser. Now, on these facts, it would seem that the suit was governed by the Special Limitation provided by the Bengal Tenancy Act. But from the facts as appear in the judgment of the Court below and the pleadings in this case, we think that this case does not fall under that special limitation as has been held by the District Judge. It is not a case to recover possession as against a landlord in a suit brought by an occupant tenant. It is a suit brought by one who has purchased the rights of an occupant tenant in execution of a mortgage decree against him as against one who happens to be the landlord and who claims to maintain his possession by virtue of a decree which be has obtained for possession as against the occupant tenant--the mortgagor. It seems to us, therefore, that the case is somewhat similar to that of Abhoy Chander Mukerjea v. Sheik Titu 1 C. W. N. clxiii. We think, therefore, that the decree of the District Judge as a Court of Appeal must be set aside, and that the case must be returned to be tried on the merits. The Plaintiff is entitled to receive costs in this Court.