JUDGMENT Khundkar, J. - The facts out of which this appeal has arisen, in so far as they are material for the purposes of the argument which we have to consider, are as follows: Under the Sova Bazar Raj there was a mourashi mokarari tenancy originally held by one Rama Nath Bhattacharjee. Under that there was an under-raiyati holding of one Harimohan Nandi which came into existence in the year 1881. The plaintiff is the successor-in-interest of Harimohan Nandi, having purchased the holding in the year 1920. On his behalf, it is claimed that he obtained an absolutely clear title in the year 1928 after a partition had taken place between his vendor and the latter's cosharers. Rama Nath Bhattacharjee's tenancy devolved after his death upon his daughters, and then upon their sons, one of whom is Monmatha Nath Ganguly. The Sova Bazar Raj instituted a suit for rent against Monmatha Nath Ganguly, without, it would appear, impleading the latter's cosharers. A decree was obtained in that suit, and the interest of Monmotha Nath Ganguly was sold in execution thereof and was purchased by defendant 1 in the present Suit, one Ramnarayan Shaw, on 17th July 1930. 2. The plaintiff's case was that in December 1930 he had been dispossessed by defendant 1 from the entire 9 bighas of his holding, with the exception of about 15 cottas, and that he had been dispossessed from 15 cottas by defendants 2 and 3. Defendants 2 and 3 admittedly had nothing to do with the tenancy of Ramanath Bhattacharjee and it was alleged on their behalf that they had somehow succeeded in obtaining a direct settlement of the 15 cottas in question from the superior landlord, the Sova Bazar Raj, some time in the year 1930. On behalf of all the defendants one of the defences taken was that of limitation, and this was pleaded in general terms in the written statements. The Courts below found for the plaintiff on the question of title. The trial Court decreed the suit, overruling the contention raised in argument that the suit was barred under the rule of special limitation contained in Art. 3 of Sch. III, Bengal Tenancy Act. On appeal by the defendants, the lower appellate Court has reversed the decision of the trial Court, and has held that the suit is barred under Art. 3, Sch. III, Bengal Tenancy Act. 3. III, Bengal Tenancy Act. On appeal by the defendants, the lower appellate Court has reversed the decision of the trial Court, and has held that the suit is barred under Art. 3, Sch. III, Bengal Tenancy Act. 3. In this appeal we have to consider the case made by the plaintiff against defendant 1 separately from that made by him against defendants 2 and 3. 4. It would be convenient to consider the case made against defendant 1 first. The only question argued in the appeal before us is whether the plaintiff's suit is one to which the limitation contained in Art. 3 of Sch. III, Bengal Tenancy Act applies. If this provision applies, then as the suit was instituted more than two years after the date of the plaintiff's dispossession, it is unquestionably barred. In the argument addressed to the Courts below regarding this question, the point argued, and to which only attention was directed, was whether the mode in which defendant 1 obtained possession of the land can be regarded as dispossession within the meaning of Art. 3 of Sch. III, Bengal Tenancy Act, in view of the admitted fact that he was put into possession through a process of Court after his purchase of the land in execution of a decree. The question presented to the Courts below in the course of arguments before them was whether the dispossession of which Art. 3 speaks can be regarded as including dispossession brought about through process of Court at the instance of an auction-purchaser. For the moment, it is unnecessary to enter into this discussion. The argument which has been addressed to us is directed, in the first instance, to the question whether the dispossession mentioned in Art. 3 means and includes not merely dispossession, but also discontinuance of possession such as is mentioned in Art. 142 of Sch. I, Limitation Act. It would be well here to set out both the Articles. Article 142 of Sch. I, Limitation Act is as follows: For possession of immoveable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the possession. 12 yrs. The date of the dispossession or discontinuance. Article 3 of Sch. III, Bengal Tenancy Act is as follows: To recover possession of land claimed by the plaintiff as a raiyat or an under-raiyat. 2 yrs. The date of dispossession. 12 yrs. The date of the dispossession or discontinuance. Article 3 of Sch. III, Bengal Tenancy Act is as follows: To recover possession of land claimed by the plaintiff as a raiyat or an under-raiyat. 2 yrs. The date of dispossession. What discontinuance of possession within the meaning of Art. 142 of Sch. X, Limitation Act, means is now well settled. Reference may be made to the cases in Rains v. Buxton, (1880) 14 Ch. D. 537 at p. 539 : (49 L.J. Ch. 473); Basudeo Atmaram v. Eknath Balkrishna, 35 Bom. 79 at p. 90 : (8 I.C. 639) and Rakhal Das Nepal Pramanik Vs. Khirode Bandhu Nandi and Others, AIR 1930 Cal 247 . The distinction between discontinuance of possession and actual dispossession is conceded. Dispossession means actual eviction of the person dispossessed by the person dispossessing. Discontinuance of possession has been held to mean and include a case of what is really abandonment by one person followed by later possession by some other person. Mr. Bose on behalf of defendant 1 does not dispute the fact that discontinuance of possession in this sense is not contemplated by Art. 3 of Sch. III, Bengal Tenancy Act, and that dispossession within that Article means actual dispossession as indicated above. Shortly stated, Mr. Bose's contention is that the dispossession found in the present case was actual dispossession, and that, therefore, the suit of the plaintiff is barred by the rule of special limitation contained in Art. 3. 5. Against this contention, Mr. Gupta has argued that a defence of special limitation has to be specially pleaded and that the onus is upon the person taking such a plea to allege and to establish the fact necessary to bring the case within the rule of special limitation actually invoked. He has pointed out that, although limitation was generally pleaded in the written statement of defendant 1, no indication whatsoever was given that his defence would be that the plaintiff's suit was barred under Art. 3 of Sch. III, Bengal Tenancy Act. In fact, the written statement contains averments which are inconsistent with such a defence, for instance, in para. 14 of his written statement defendant 1 actually alleges that the plaintiff has not been dispossessed at all. To substantiate this defence of special limitation defendant 1 has to fall back upon the plaint itself. This, according to Mr. In fact, the written statement contains averments which are inconsistent with such a defence, for instance, in para. 14 of his written statement defendant 1 actually alleges that the plaintiff has not been dispossessed at all. To substantiate this defence of special limitation defendant 1 has to fall back upon the plaint itself. This, according to Mr. Gupta, cannot be permitted, and he has drawn our attention to, amongst others, the following cases, Taranath v. Iswar Chandra Das, 16 C.W.N. 398 : (11 I.C. 164); North Western Salt Co., Ltd. v. Electrolytic Alkali Co., Ltd., (1914) A.C. 461 : (83 L.J.K.B. 530). In the first mentioned case it was stated that the general rule of limitation in suits for recovery of possession of property was 12 years, and that it was upon the party claiming the benefit of a shorter period of limitation to establish that the case fell within the special rule limiting the period to a shorter time. The second case was an action brought on a contract which was ex facie illegal, as being in illegal restraint of trade. It was held that the Court would decline to enforce the contract, irrespective of whether illegality was pleaded or not; but where the question of illegality depended upon the surrounding circumstances, as a general rule, the Court would not entertain the question unless it was raised by the pleadings. It was further held that, having regard to the form of the pleadings, the surrounding circumstances could not be looked at for the purpose of determining the illegality of the agreement, and that the agreement was not ex facie illegal. In the special facts established and found in the present case, we do not think any guidance can be derived from the case of the North Western Salt Co., Ltd. v. Electrolytic Alkali Co. Ltd., 1914 A.C. 461 : (83 L.J.K.B. 530). As regards the case of Taranath Chakravarty v. Iswar Chandra Das Sarkar, 16 C.W.N. 398 : (11 I.C. 164), what that case really holds is that the onus of establishing a shorter period of limitation than that prescribed by the general law lies upon the person claiming the benefit of the shorter period. In the case of Ram Charan Tripathi and Others Vs. In the case of Ram Charan Tripathi and Others Vs. Madan Mohan Jana and Others, AIR 1932 Cal 195 , it was laid down that, having regard to the provisions of S. 184, Bengal Tenancy Act, it would not be open to the High Court to shut its eyes to the question of limitation when the matter had been investigated in the lower Court, merely because limitation was not pleaded so early as it ought to have been. Rankin C.J. stated as follows: ....the plea of limitation has been on the record, though not from the beginning, from a comparatively early stage, and I have no doubt at all that that plea of limitation must be dealt with. 6. It follows that whatever may have been the manner in which the case for the defendants was originally shaped, the question of special limitation argued both in the Courts below as well as before us must be considered, and it must be decided upon the facts established by the evidence and, found by the Courts below. There is in this case a clear and unequivocal finding by the learned trial Court that the plaintiff was in actual possession and enjoyment of the land uptill December 1930, when he was deprived of that possession by the defendants. It should be remembered in this connection that, according to the case made by defendant 1, which has not been challenged by any party to these proceedings, he obtained what must have been symbolical possession through an officer of the Court in October 1930. The finding of the trial Court has been expressed in language which it is necessary to set out, because it seems to us that this places the matter beyond dispute: Plaintiff's evidence is that since his purchase he exercised acts of possession by taking fruits of the trees and by putting fence round the land. Plaintiff says he was in such possession till December 1930. D.W. 1 does not know who possessed the land before his purchase in 1930. D.W. 2 says that before he took the land he did not see anybody possessing the land. D.W. 3 says that he does not know who possessed before Sitaram took the 15 cottas plot. In the circumstances I do not see any reason to disbelieve the evidence of possession on the plaintiff's side. D.W. 2 says that before he took the land he did not see anybody possessing the land. D.W. 3 says that he does not know who possessed before Sitaram took the 15 cottas plot. In the circumstances I do not see any reason to disbelieve the evidence of possession on the plaintiff's side. The evidence of P.W. 9 about the existence of the fencing on the east of the land beginning from the corner of Pal's garden on the north down to the back of Hazra's land on the south and the repairs done to it by the plaintiff's men clearly show that the plaintiff had been possessing the land. We are satisfied that this is a finding, firstly, that the plaintiff was in possession up till December 1930, and, secondly, that he was actually turned out of possession by the defendants. 7. It follows, therefore, that this is a case of dispossession within Art. 3 of Sch. 3, Bengal Tenancy Act, and that the plaintiff's suit as against defendant 1 is barred by that Article. 8. Mr. Gupta has, however, on behalf of the appellant, contended that there is another reason for holding that such dispossession as took place in this case is not dispossession within the meaning of that Article. His alternative argument raises the questions which were argued before the Courts below, that is to say, whether dispossession by a person who is an auction-purchaser is dispossession within the meaning of the Article, although that person may happen to have the landlord's interest vested in him. In our judgment, this question does not arise upon the findings already referred to. It is nobody's case that defendant 1 obtained possession through Court as late as December 1930. His own case is that he obtained such possession in October 1930. It follows that in December 1930, at the time when, as found by the trial Court, he deprived the plaintiff of possession, he did so by an act of his own which cannot in any sense be attributed to the execution of any process of a Court. At the time when defendant 1 so dispossessed the plaintiff he was admittedly in the position of a co-sharer landlord. On the findings, therefore, this argument also fails, and the contention that the plaintiff's suit is not barred under Art. 3 of Sch. 3, Bengal Tenancy Act, must be negatived. 9. At the time when defendant 1 so dispossessed the plaintiff he was admittedly in the position of a co-sharer landlord. On the findings, therefore, this argument also fails, and the contention that the plaintiff's suit is not barred under Art. 3 of Sch. 3, Bengal Tenancy Act, must be negatived. 9. As regards defendants 2 and 3, no question of special limitation can possibly arise. It is not disputed that the special limitation embodied in Art. 3 of Sch. 3, Bengal Tenancy Act, applies only to cases of dispossession of a tenant by a landlord. The very case of defendants 2 and 3 is that they are persons who had obtained independent settlement from the zemindar, that is to say, from the Sova Bazar Raj. It is not for a moment alleged on their behalf that any relationship of landlord and tenant exists between them and the plaintiff. The learned trial Court held upon the evidence that they had no title to the 15 cottas of land which they claimed, and, as already stated, the suit by the plaintiff as against all the defendants, was decreed by the trial Court. In these circumstances, it is very difficult to understand how the lower appellate Court could come to pass the order, "the other two appeals must, in the circumstances, also succeed". We think that this must be due to pure oversight. 10. In the result the plaintiff's appeal as against defendant 1 is dismissed with costs; the plaintiff's appeal as against defendants 2 and 3 is allowed but in this matter we make no order as to costs. The decree in favour of the plaintiff against defendants 2 and 3 will be in respect of the 15 cottas of land which defendants 2 and 3 have claimed in this suit. We must not be understood as deciding any question of title as between defendant 1 and defendants 2 and 3 with regard to the 15 cottas of land just referred to. Biswas, J. 11. I agree.