JUDGMENT Akram, C.J. - This appeal by the Plaintiff arises out of a suit for the recovery of khas possession of the plaint lands on declaration of Plaintiff's title thereto as decree-holder auction-purchaser in mortgage execution case No. 194 of 1934. 2. Briefly stated the Plaintiff's case was that Defendant 1, who was an occupancy raiyat under the Maharaja of Tippera, mort-gaged his holding to the Plaintiff; that as the mortgage dues were not paid, the Plaintiff instituted mortgage Suit No. 280 of 1931, got a decree and in execution thereof purchased the suit land on 24th November 1934; that he then took delivery of symbolical possession through the Court on 12th July 1935, but in the meanwhile Defendant in collusion with the officers of the landlord suffered a rent decree to be passed against himself in a rent suit in 1930 and in execution of that decree got the properties in suit sold at auction on 22nd November 1931; that the landlord purchased the said properties and took possession thereof sometime in June 1932; that Defendant 1 obtained a benami settlement of the said land from the landlord in the name of Defendant 9 on 14th December 1935 and again had the same sold in the benami of his wife, Defendants 4 and 5 after that created a mortgage in favour of Defendants 4 and 5; that all the transactions from the settlement taken by Defendant 3 to the mortgage in favour of Defendants 4 and 5 were all manipulated by Defendant 1 and were fraudulent and collusive transactions; that in fact possession of the land in dispute had remained with Defendant 3 throughout inspite of the sale under the rent decree aforesaid; that no notice for annulment of the mortgage incumbrance u/s 167, Ben. Ten. Act was served upon the Plaintiff and, consequently, his right to the suit land purchased at the auction sale on 24th November 1934 had remained intact and he was entitled to khas possession of the same, that when he wanted to take actual possession on 31st July 1936 he was foiled by the Defendants. 3. Defendants 2 and 3 alone contested the suit. 3. Defendants 2 and 3 alone contested the suit. They denied all the material allegations of the Plaintiff and averred that the Plaintiff's interest in the suit land ceased to exist after the rent sale on 22nd November 1931 long before the mortgage sale on 24th November 1934; that the settlement of the suit land by the landlord with Defendant 3 was a bona fide settlement and was not benami for Defendant 1; that the subsequent transactions thereafter were also valid and bona fide. 4. The real question seems to me to be whether the Plaintiff's claim to the suit land by right of auction purchase in the mortgage sale should prevail over the Defendant's settlement obtained from the landlord, who had purchased the said land at a prior rent sale. 5. The trial Court decreed the suit, taking the view that the mortgagee auction-purchaser was entitled to have possession of the properties in the absence of any annulment of the mortgagee's interest by notice u/s 167, Ben. Ten. Act: Bidhuranjan Sarkar Vs. Soleman Pramanik and Others, AIR 1941 Cal 613 , and that the rent sale was subject to the mortgage sale in view of Section 52, T.P. Act. 6. Defendants 2 and 3 thereupon appealed and the lower appellate Court reversed the decision of the trial Court and dismissed the suit, holding inter alia that this case was governed by the special law of limitation i.e., Article 3, Sch. 3, Ben. Ten. Act and as more than two years had elapsed between the date of possession by the landlord (June 1932) or at any rate by Defendant 3 (14th December 1935) and the date of suit by the Plaintiff (24th January 1942), Plaintiff's claim was barred by limitation. 7. Against that decision, the Plaintiff has preferred the present appeal. It has been urged before me by the learned advocate for the Appellant that the landlord purchaser, at a rent sale, is bound to follow the provisions of Section 167, Ben. Ten. Act, if he is desirous of annulling the incumbrances; that in case he fails to do so, the holding purchased by him remains subject to the mortgage and Sital Chandra Majhi Vs. Ten. Act, if he is desirous of annulling the incumbrances; that in case he fails to do so, the holding purchased by him remains subject to the mortgage and Sital Chandra Majhi Vs. Parbati Charan Chakrabarti, AIR 1922 Cal 32 , is relied upon in support, it is further urged that the Plaintiff mortgagee auction purchaser was entitled to claim recovery of possession from the Defendants as the purchase by the landlord had taken place during the pendency of the mortgage execution case and was thus affected by the doctrine of lis pendens. However, whatever that may be, it seems to me that on the Plaintiff's own case and the findings arrived at by the Court of appeal below the Plaintiff cannot succeed, as the suit was instituted in 1942 and the Plaintiff's case was that he had never been in possession, and that Defendant 3 or Defendant 1 was in possession of the land since 14th December 1935. Regarding this aspect of the case in the course of his judgment the learned Judge in the Court below has observed as follows: That possession must have ousted the Plaintiff. It is idle for the Plaintiff to say that be chose to allow his tenancy to remain fallow, and that therefore he was not in possession. His cause of action did not arise in July 1936 when be went to take possession; it arose on the date of the lease to Defendant 3. He was then put out of possession in consequence of the act of the landlord and of the new tenant, Defendant 3, inducted upon the land. 8. It is, however, argued that no point of special limitation was taken before the Court of appeal below; that no issue was framed upon it and no evidence was adduced in respect of it; that it was a mixed question of fact and law and should not have been allowed to be raised for the first time before the lower appellate Court. But it has been pointed out by the learned Judge in the Court below that the Plaintiff is not in the least prejudiced on that account, the Plaintiff's case being that he had never been in possession and that Defendant 9 was in possession from the date of the kubuliyat namely 14th December 1935. But it has been pointed out by the learned Judge in the Court below that the Plaintiff is not in the least prejudiced on that account, the Plaintiff's case being that he had never been in possession and that Defendant 9 was in possession from the date of the kubuliyat namely 14th December 1935. The only question, therefore, that can arise on the above admitted facts would be whether in the above circumstances the possession by Defendant 9 amounted to dispossession by the landlord. On the facts and circumstances of this case, I do not think that the learned Judge in the Court of appeal below fell into any error in inferring ouster by the landlord on the basis of his settlement with Defendant 3 aforesaid. Reference here may be made to the decisions in the cases of Sheikh Alam and Others Vs. Atul Chandra Roy and Others, AIR 1936 Cal 299 and Maharaja Sashi Kanta Acharjya Bahadur Vs. Nayjan Bewa and Others, AIR 1942 Cal 611 . 9. I am not impressed with the argument that although the case of Defendant 1, mortgagor may be governed by Article 9, Schedule 3, Ben. Ten. Act, the case of his mortgagee the Plaintiff falls under the general law of limitation under Article 144, Limitation Act. Reference in this connection may be made to the decision in the case of Mohim Chandra Basak and Others Vs. Kanailal Saha and Others, AIR 1930 Cal 311 , where in a similar circumstance it was observed that the principle that the dispossession of the mortgagee having commenced after the date of the mortgage time should not run against him is a correct principle where the Limitation Act has to be applied but Article 3 is a special provision of limitation enacted for the benefit of the landlord and the general principle stated above cannot be held to be applicable in a case like this. If it is allowed to prevail, the result will be that a tenant out of possession is unable to recover possession of a holding from the landlord after the lapse of two years; but his mortgagee is entitled to do so within 12 years of dispossession. 10. In my opinion the contentions put forward by the learned Advocate for the Appellant fail and I, accordingly, dismiss this appeal; but I make no order as to costs. 11. 10. In my opinion the contentions put forward by the learned Advocate for the Appellant fail and I, accordingly, dismiss this appeal; but I make no order as to costs. 11. The cross-objection is not pressed by the learned advocate for the Respondents and is also dismissed without costs.