ENAYATULLAH MIA Vs. MD. SAIYED ALI SHEIKH AND ORS.

JUDGEMENT

(1.) THIS appeal is on behalf of the Defendant arising out of a suit for khas possession after redemption of the mortgage. The case of the Plaintiff is that pro forma Defendant Nasimuddin Seikh was an occupancy raiyat over 8 bighas of the suit land situated at village Nakuchi. mauza Bhabanipur in the Kamrup District covered by the Nispi Kheraj patta. On the 18th January 1949 Nasimuddin Seikh usufructuarily mortgaged the suit land along with other lands in favour of the Defendant Enayatullah Mia for Rs. 1500 for a period of seven years. Possession of the property was given to the mortgagee who was to retain the property for seven years and release it after the expiry of the said period.

(2.) THE main point urged before me in second appeal was that the suit is barred by limitation. The contention is that the special limitation provided under Schedule 1, Part I Item 4 read with Section 125 of the Assam (Temporarily Settled Districts) Tenancy Act, 1935 (hereinafter called 'the Act') is attracted. The period of limitation provided for under this section is two years from the date of dispossession. The special limitation provided for under the schedule will not apply to a case brought by the mortgagor for possession after redemption of the property against the mortgagee. That provision is attracted only when there is a dispossession by the landlord. The contention is that as the land was settled with the Defendant No. 1 by the landlord in the year 1357 B.S. from the date of settlement, the possession of the Defendant is on behalf of the landlord and thus the Plaintiff will be deemed to have been dispossessed by the landlord. In my opinion there is no force in this contention. Firstly, the suit being one for redemption as between the mortgagor and the mortgagee, the special limitation for possession by a tenant against the landlord will not apply in this case. Secondly special limitation is for possession when the Plaintiff has been dispossessed by the landlord. In the present case although the Plaintiffs obtained the sale deeds from Nasimuddin, the Plaintiffs never got actual possession over the property and so the question of their being dispossessed by the landlord by grant of settlement to the Defendant No. 1 does not arise at all.

(3.) IN the result, therefore, there is no force in this appeal and it is rejected with cost.