JUDGMENT : R.N. Misra, J. - Defendants I and 2 are the Appellants against a reversing judgment of the learned Subordinate Judge, Balasore, in a suit for title, recovery of possession and permanent injunotion. 2. The suit lands are in khata Nos. 749 and 750 within touzi No. 274. It is stated that the Ka and Ga schedule lands are Bari while the Khai schedule lands are cultivable. The Ka schedule lands measuring decimals belonged to one Jagabandhu. Srimati as his widow inherited the said property. She died in 1911 sbortly before the revision settlement. After Srimati, the Plaintiff and his two brothers Hrushi and Chakradhar inherited the property. Hrushi and Chakradhar died in a state of jointnes with the Plaintiff and thus the Plaintiff became the sole owner of the Ka schedule property. The Kha and Ga schedule properties belonged to one Karun J. After him, his widow Duti Bold the properties under the said two sohedules to the Plaintiff and his brothers on 27-11-190 a under Ext. a. In the revision settlement, Hrushi's name was entered as be was the eldest member representing the Plaintiff's family. In the current settlement the Ka, Kha and Go. schedule lands were recorded in the name of the Plaintiff u/s 26(2) of the Orissa Tenanoy Act. The Plaintiff contends that the said entry is wrong and neither the Plaintiff nor his brothers had any proprietary interest in the said properties until just before the current settlement when they acquired 1 pie interest in the said touzi, from their agnate Kanhu. The existing occupancy right of the Plaintiff was not extinguished. The Plaintiff's interest in the touzi was sold in 1938 for arrears of revenue and Defendant No. 2 purchased the touzi and took delivery of it. In 1957, the Plaintiff came to know that Defendant No. 1, who happens to be the wife of Defendant No. 2, had been recorded in the water rate assessment register for the Kha schedule lands. Soon thereafter possession of the suit lands came to he disputed and a proceeding u/s 145, Code of Criminal Procedure in respect of the Kha schedule lands was initiated. Possession of such property was found in 1959 in the said proceeding in favour of Defendant No. 2. Soon thereafter possession of the suit lands came to he disputed and a proceeding u/s 145, Code of Criminal Procedure in respect of the Kha schedule lands was initiated. Possession of such property was found in 1959 in the said proceeding in favour of Defendant No. 2. Defendant No. 2 created fraudulent leases in favour of Defendant No. 1 in respect of the Ka and Kha schedule lands and in the names of Defendants 3 and 4 in respect of the Ga schedule lands. The Plaintiff also asked for a declaration that these leases are invalid. 3. Defendants 1 and 2 in a joint written statement contended that the suit touzi is the ancestral property of the Plaintiff's family; the Plaintiff has no occupancy right in the suit holding and the current settlement entry is correct; the suit holding being a part of the proprietary interest passed to Defendant No. 2 in the revenue sale; Defendant No. 2 was in possession of it; in 1942, Defendant No. 2 leased the Ka and Kha schedule lands to his wife Defendant No. 1 in satisfaction of her dower debt,; the Ga schedule land has been duly leased out in favour of Defendants 3 and 4 and they have been in possession of it. It was also pleaded that the suit was barred by limitation under the provisions of special limitation prescribed in Schedule III of the Orissa Tenancy Act, 1913. 4. The trial Court came to hold that the suit holding passed to Defendant No. 1 in the revenue sale; the Plaintiff has no right, title or possession in the suit lands and the suit was barred by special limitation provided under the Orissa Tenancy Act. On the aforesaid findings, the suit was dismissed. 5. On appeal, the learned Appellate Judge recorded the following findings: (1) Pahali, the Plaintiff and his brothers had proprietary interest in the touzi even before the revision settlement; (2) Though the Plaintiff was a co-sharer landlord in respect of the suit touzi, when he acquired the occupancy holding the raiyati right appertaining to the holding was not extinguished and the Plaintiff remained in possession of the suit holding as a raiyat. In 1938 revenue sale the occupancy holding did not pass to the purchaser Defendant No. 2. In 1938 revenue sale the occupancy holding did not pass to the purchaser Defendant No. 2. (3) The Plaintiff has been in possession of the Ka and Ga schedule lands which are Bari lands; (4) The Plaintiff possessed the Kha schedule lands till 1950 when Defendant No. 1 dispossessed him. Dispossession being within 12 years the suit was maintainable; (5) The Plaintiff's possession of the Ka and Ga schedule lands was confirmed and a decree for recovery of possession for the Kha schedule land was granted. It was further' declared that the leases were inoperative and the Plaintiff was entitled to a decree for permanent injunction. It is against this reversing judgment of the learned Subordinate Judge that the two Defendants, who are husband and wife respectively are in appeal. 6. Mr. Dasgupta does not press his claim in respect of the Ka and Ga schedule lands. Therefore, the present appeal is only concerned with the dispute relating to the Kha schedule lands and the decree of the learned Appellate Judge in respect of the remaining two schedules, that is, Ka and Ga, is treated as final. 7. Two questions are raised by Mr. Dasgupta in this appeal. He contends that the suit should be treated as being barred by limitation as the special limitation under the Orissa Tenancy Act would be applicable to the facts of the present case and the learned Subordinate Judge clearly went wrong in applying the twelve year period limitation to the present case. His second contention which is connected with the first is that with the purchase in the revenue sale in 1938 the occupancy right in the holding was lost, but there was still an interest in respect of the tenancy holding and the holding survived. 8. The transaction in question took place at a point of time when the Orissa Tenancy Act, 1913 bad not been enacted, and the Bengal Tenancy Act was in force. The lower appellate Court has made reference to Section 26(2) of the Orissa Tenancy Act mainly on account of the fact that the O.S. record made an entry in respect of the Kha schedule land with reference to Section 26(2) of the Orissa Tenancy Act. A provision similar in certain respects to the present Section 26(2) of the Orissa Tenancy Act was available in Section 22(2) of the Bengal Tenancy Act. A provision similar in certain respects to the present Section 26(2) of the Orissa Tenancy Act was available in Section 22(2) of the Bengal Tenancy Act. Section 22(2) of the Bengal Tenancy Act is to the following effect: If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure-bolder, it shall cease to exist; but nothing in this sub-section shall prejudicially affect the rights of any third person. Section 26(2) of the Orissa Tenancy Act is to the following effect: If the occupancy right in land is transferred to a person jointly interested in the land as proprietor or permanent tenure holder, such person shall have no right to hold the land as a raiyat, but shall hold it as a proprietor or permanent tenure-holder, as the case may be, and shall pay to his co-sharers a fair and equitable sum for the use and occupation of the same. This provision came to be interpreted in a series of cases in the Calcutta High Court, in the Patna High Court and also in this Court. I would first refer to a decision of this Court in Nilmoni Hota Vs. Govinda Chandra Das. Panigrahi, J., as he then was, sitting with Mr. Justice Das, as he then was discussed the consequences of acquisition by a co-sharer proprietor of an occupancy interest in a holding and stated the law to be thus: It was accordingly contended by Mr. Pal that all the purchases made by his cannot being prior to 1913 when Section 26(2), Orissa Tenancy Act took the place of Section 22(2), Bengal Tenancy Act, the right acquired by him would not be affected by the Orissa Tenancy Act, 1913. We are satisfied that this contention is correct and must prevail, the result being that the Defendant-Appellant can retain possession of the lands that he had acquired by purchase prior to 1913. His occupancy right in such Lands is certainly extinguished but the holding continues and he can hold the land subject to payment of rent to the co-share proprietors. The remark made against his name in the Current Settlement Record-of-Rights does not affect the legal position or his status which he had acquired before the passing of the Orissa Tenancy Act. His occupancy right in such Lands is certainly extinguished but the holding continues and he can hold the land subject to payment of rent to the co-share proprietors. The remark made against his name in the Current Settlement Record-of-Rights does not affect the legal position or his status which he had acquired before the passing of the Orissa Tenancy Act. The correct position, therefore, appears to be that the Appellant was by reason of his purchase of the occupancy holding a tenant under the general body of proprietors and was liable to pay rent to them u/s 22(2), Bengal Tenancy Act, as amended in the year 1907 and that there was no merger of the two interests, provision for which was subsequently enacted in Section 26(2) of the Orissa Act. In another part of the said judgment, the learned Judges, while examining as to what right would pass to the purchaser at a revenue sale of a touzi stated thus: On a plain reading of the section it appears that all that the purchaser acquires is only the share which the defaulting proprietor had in the estate; and what he does not acquire is any right which the previous owner did not possess. If I am right in my view of the provision in Section 22(2) of the Bengal Act, as stated above, it cannot be said that the previous owner owned, in the land that he purchased from the occupancy ryot, any interest as owner of the estate, since Section 22(2) kept the two interests separate and recognised the status of the purchasing co-proprietor as a tenant paying rent, to the general body of co-proprietors. It therefore follows that the Defendant Appellant did not possess the interest that be bad purchased as proprietor. The section does not say that the purchaser at the revenue sale shall acquire all the rights which were possessed by the previous owner; in terms it expressly says that he shall not acquire any rights which were not processed by the previous owner. This can only mean that the purchaser acquires no more than what was the property of the previous owner viz., his share in the estate. The holding did not become the private land of the proprietor; it was held by him in a different capacity and therefore would not pass at the revenue sale to the auction purchaser. 9. This can only mean that the purchaser acquires no more than what was the property of the previous owner viz., his share in the estate. The holding did not become the private land of the proprietor; it was held by him in a different capacity and therefore would not pass at the revenue sale to the auction purchaser. 9. The point which arises in the present case is to decide as to what is the effect on the occupancy holding by purchase of it by a co-sharer proprietor of the touzi. According to Mr. Dasgupta, there is a merger and the tenancy interest is lost. Therefore, when the revenue sale took place in 1938 Defendant No. 2 acquired the holding also. Mr. Mohapatra, learned Counsel for the Respondents, however, contends that the holding did not pass, because the boding survived. What was lost was only the occupancy right and the two interests, that is, one of the proprietor and the other of the holder of "once upon a time" the occupancy holding are separate, and with the sale of the proprietary interest the interest in the other holding does not pass. His contention therefore, is that the sale in 1938 did not convey to Defendant No. 2, what was once the occupancy holding. This aspect of the matter becomes relevant for determination as to whether the suit claim is barred by limitation or not, on the principle that the special limitation provided under the Orissa Tenancy Act would apply in case it is a suit by a raiyat for possession. 10. A number of decisions of the Calcutta High Court were cited at the Bar on this point. Reference may be made to these cases: Akhil Chandra Biswal v. Hasan Ali Sadagar AIR 1915 Cal. 456, Babu Ram v. Upendra Nath AIR 1918 Cal. 968. Lakhi Kant v. Balabhadra 19 Cal.L.J. 400, H. Chandra Bari v. M. Mohan Barai AIR 1921 Cal. 249, Profulla Chandra Ghose and Another Vs. Baburam Mandal and Others. Arman Peada Vs. Manik Sarkar and Others. Jawadul Huq v. Ram Das Saha ILR 24 Cal. 143 Similarly two decisions of the Patna High Court were also cited: Hari Mohan Prasad Chaudhury and Others Vs. Md. Bashidul Haque and Others, & Garbehu v. Bibi Khudai Jatunnissa AIR 1925 Pat. 249, Profulla Chandra Ghose and Another Vs. Baburam Mandal and Others. Arman Peada Vs. Manik Sarkar and Others. Jawadul Huq v. Ram Das Saha ILR 24 Cal. 143 Similarly two decisions of the Patna High Court were also cited: Hari Mohan Prasad Chaudhury and Others Vs. Md. Bashidul Haque and Others, & Garbehu v. Bibi Khudai Jatunnissa AIR 1925 Pat. 597, I have examined these decisions carefully and as it appears, many of these decisions do not indicate as to what sort of interest the holder of that occupancy holding in which the occupancy interest is lost has under the provisions of the Tenancy Act. There is consensus judicial opinion that the holding survives. But with what interest in the holding the holder keeps it has not been directly decided. Mr. Mohapatra contends that the interest which is left in the holder in respect of such holding cannot be that of a raiyat, and for the purposes of deciding the special limitation what is relevant is whether the status of the Plaintiff in such a case can be said to be that of a raiyat or an under-raiyat. Section 238(1) of the Orissa Tenancy Act is to the following effect: The suits, appeals and applications specified in Schedule III shall be instituted and made within the time prescribed in that Schedule for them respectively; and every such suit or appeal instituted, or application made, after the period of limitation so prescriber, shall be dismissed, although limitation has not been pleaded. The limitation prescribed in Schedule III in Article 3 is to the following effect: Description of suit, appeal or application. To recover possession of land claimed by the Plaintiff as a raiyat or an under-raiyat period of limitation. Two years, From which period being to run. The date of dispossession. 11. The question of determination in the present case is as to whether the Plaintiff had the status of a raiyat or an under-raiyat and whether the present suit can be said to come within Article 3 of Schedule III of the Orissa Tenancy Act. If it squarely comes within the purview of Article 3, the suit having been filed admittedly beyond 2 years the claim would be-barred by limitation. If it squarely comes within the purview of Article 3, the suit having been filed admittedly beyond 2 years the claim would be-barred by limitation. If the special limitation does not apply and the claim is covered by the general law of limitation, the period would be 12 years as has been held by the learned Appellate Judge, and the Plaintiff's claim would not be out of time. "Raiyat" has been defined in Section 5(2) of the Orissa Tenancy Act in the following manner: 'Raiyat' means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family, or by hired servants, or with the aid of partners, and includes also the successors in interest of person who have acquired such a right. "Under-raiyat" is the third classification of tenant u/s 4 of the Act. Keeping the position in law in mind I have analysed the decisions cited at the Bar. While some of the learned Judges have taken the view that there is some element of tenancy interest left that interest has not been indicated to be the extensive interest of a raiyat or of an under-raiyat. If the Plaintiff cannot be held to have a raiyati or an under-raiyati interest in the holding surviving in him not affected by the sale of 1938, the special limitation cannot be applied, and the Plaintiff cannot be non-suited on the plea of the claim being out of time. Before a Full Bench of the Calcutta High Court a, matter of this type came for examination. Of the five learned Judges who constitute the Full Bench, Rampini, J. gave a dissenting note, but the other 3 learned Judges agreed with the view expressed by Maclean, C.J. in Ram Mohan Pal v. Sheikh Kachu 1 Cal.L.J. 1. This is how Ghose, J., who supported the view of the learned Chief Justice, expressed himself: Section 22 of the Bengal Tenancy Act 'speaks of an occupancy right; and in the circumstances mentioned in Clause (2), it says, such occupancy right shall case to exist. But it does not say that the holding itself hall cease to exist. This is how Ghose, J., who supported the view of the learned Chief Justice, expressed himself: Section 22 of the Bengal Tenancy Act 'speaks of an occupancy right; and in the circumstances mentioned in Clause (2), it says, such occupancy right shall case to exist. But it does not say that the holding itself hall cease to exist. It has however, been said that the same words shall cease to exist occur in both Clauses (1) and (2) of the said Section 22 and if the tenant's right is to be taken to come to an end in one case it must also be taken to have come to an end in the other case as well. To my mind, there is an obvious distinction between the two cases contemplated by Section 22. In the first mentioned case, I mean, that in, Clause (1), the interest of the raiyat and the landlord becomes united in one and the same person and the necessary result is that the tenant's right is merged in the higher right of the land, because the latter could not hold the land as a raiyat to himself. But the like result does not follow in the other case, for the co-sharer landlord, having acquired the right of a raiyat, could hold the land as a raiyat, if not to himself, certainly to the other co-sharer landlords. I am of opinion, therefore, that when the Bengal Tenancy Act does contemplate a class of raiyats different from raiyats with right of occupancy, namely, non-occupancy raiyats, the result of a purchase by a co-sharer land lord, of the occupancy holding of a tenant, as it is in the present case, will not be the termination of the tenancy right altogether, but only of this occupancy right in the holding. Harington, J. who agreed with the majority view, expressed himself thus: In this case the purchaser of the tenant's interest was not the landlord but one individual out of a number of persons who jointly constituted the landlords, so that the greater estate, that is, that of the joint landlords and the lesser estate, that is, the interest of the tenant which is purchased by one individual out of many, do not coincide and meet in the same person; there cannot therefore be any merger. I do not think, that in Section 2, Clause 2 of the Bengal Tenancy Act, the Legislature has expressed an intention that the tenancy should cease to exist under the circumstances of this case. I think the Legislature only intended that the occupancy right which is an incident of the tenancy under Chapter V of the Tenancy Act should cease to Exist. 1? it was intended that the tenancy should come to an end, I think the Act would have said 130 and would not have been limited in terms to the cases of the occupancy right only. It can be taken, on an analysis of the aforesaid Fun Bench decision, that the majority view supported such a conclusion, namely, that the holding continued and a tenancy right short of occupancy interest subsisted in the holder of such holding I have examined many other decisions that were cited at the Bar, but there is no positive indication in any other decision as to what would be the interest in the "once upon a time" occupancy holding after the merger. The Division Bench decision of this Court referred to above did not decide one way or the otter after concluding that the holding did not merge nor did it get extinguished. In the circumstances, I would accept the principle indicated in the aforesaid Full Bench decision of the Calcutta High Court and hold that the interest of an under rayat subsisted in the Plaintiff and it can be concluded that an under-rayati interest continued in him. As such, the claim made by him in respect of the Kha schedule Property can come within the purview of Article 3 of Schedule III of the Orissa Tenancy Act. 12. That, however, is not the end of the matter. It has been consistently held that in order to attract the special limitation the case must be one where the dispossession has been by the landlord or his agent acting within his authority. Any dispossession would not come within the special limitation. The principle seems to be clear that dispossession by the landlord is contemplated in this Article and if it is not dispossession by the landlord or through an agency of his the special limitation is not attracted. 13. Mr. Any dispossession would not come within the special limitation. The principle seems to be clear that dispossession by the landlord is contemplated in this Article and if it is not dispossession by the landlord or through an agency of his the special limitation is not attracted. 13. Mr. Mohapatra contends that this is a case where it has been found that there has been a lease by Defendant No. 2 in favour of his wife. The learned Appellate Judge, while coming to discuss the question of possession held; The oral evidence on either side is balanced and it is not possible to come to a conclusion regarding possession from the oral evidence adduced in the case. Therefore, one has to look to the documents which have been proved on either side. Ext. 4 is the water rate parcha of 1957-58 in respect of the Ka schedule plot standing in Plaintiff's name. Exts. 5 and 5/ a are water rate parchas of 1947-48 in respect of the Kha schedule plot standing in the names of the Plaintiff and his brother Hrushi separately. On 12-4-1950, the Plaintiff filed the application marked Ext. A for exemption from water tax in respect of the Kha schedule plot along with other plots on ground that he did not possess them. It is not said in the petition who possessed them. Ext. J. will show that water rate in respect of Kha was assessed on Defendant No. 1 in 1930-51 and that the transfer of assessment was made due to prior mistaken assessment, It will therefore be seen that till 1950, the Plaintiff paid water rate in respect of the Kha schedule plot and thereafter the Defendant No. 1 was assessed to water rate in respect of this property. The fact that the Plaintiff had applied for omitting water rate in respect of the Kha schedule lands on the ground that he was not in possession clearly goes to show that he had been out of possession. The learned Appellate Judge failed to notice the consequence of such an admission as was contained in Ext. A which has been referred to by him in the aforesaid portion of his judgment. The learned Appellate Judge failed to notice the consequence of such an admission as was contained in Ext. A which has been referred to by him in the aforesaid portion of his judgment. The fact that the Plaintiff was not in possession and the further fact that Defendant No. 1 has produced the rent receipts which have been granted to her both by Defendant No. 2 for pre-vesting period and by the State subsequent to vesting would clearly show that Defendant No. 1 bad been in possession of the Kha schedule land. The Plaintiff does not claim to be in possession of the schedule land and the relief is for recovery of possession. The learned Appellate Judge has also recorded a finding that the Plaintiff has been out of possession from 1950. It is necessary to find out whether it is a dispossession by the proprietor or by a lessee from such proprietor. As has already been indicated, if the dispossession is by the proprietor the special limitation is attracted and if it is by the lessee from the proprietor the general law of limitation will apply. The judicial opinion on this point seems to be unanimous. In H. Chandra Baral v. M. Mohan Baral AIR 1921 Cal. 249, Acting Chief Justice Mookerjee sitting with Mr. Justice Fletcher was examining purview of Article 3 of Schedule III of the Bengal Tenancy Act and held, The third column of Article 3 does not specify the person by whom the dispossession bad been made but as this provision is found in a statute which amends and consolidates enactments relating to the law of landlord and tenant, the Article can be made applicable only where the dispossession has been effected by the landlord. On first principle, it further follows that the Article also applies where the dispossession has been effected, not by the landlord personally but by an agent acting within the scope of his authority. But the principles of constructive dispossession must Dot be extended unduly. Merely because the landlord had settled the lands with certain persons, it cannot be said that he had authorized them to oust the persons who were in possession. Reliance on the aforesaid view was placed on a series of earlier Calcutta decisions. In the very volume of the AIR at pages 289, 349 and 7756, there are also cases taking the similar view of the law. Reliance on the aforesaid view was placed on a series of earlier Calcutta decisions. In the very volume of the AIR at pages 289, 349 and 7756, there are also cases taking the similar view of the law. Another Division Bench of the Calcutta High Court in a case reported in Rakhal Das Nepal Pramanik Vs. Khirode Bandhu Nandi and Others also accepted the similar interpretation of Article of 3 of Schedule III of the Bengal Tenancy Act. 14. In the present case, once it is held that there was a valid lease by Defendant No. 2 in favour of his wife as I have already found, it must be held that the dispossession in 1950 was by the lessee and not by the landlord. On the analysis made of the legal position with reference to Article 3 of Schedule III of the Tenancy Act, I would hold that this dispossession by the lessee did not bring the matter within the special limitation of two years as provided in the Tenancy Act, and the general law of limitation applied. The findings that now stand are: (1) The Plaintiff had an under-raiyati interest in the Kha schedule land which was "once upon a time" an occupancy holding; (2) The claim for recovery of possession by the Plaintiff would normally come within the special limitation provided under the Orissa Tenancy Act; (3) The Plaintiff having not been dispossessed by the landlord or an agent of the landlord, but by a lessee of the land-lord it cannot be held that there was a dispossession within the purview of the special provision and as such the general law of limitation of 12 years for a suit for recovery of possession would apply. 15. On the aforesaid position it must be held that the Plaintiff's suit was within time and cannot be said to have been barred by limitation. The conclusions of the learned Appellate Judge, though with certain modifications regarding certain findings, have to be sustained. The second Appeal fails and is dismissed. The judgment of the lower appellate Court is confirmed. Parties would bear their own costs throughout. Final Result : Dismissed