14 February 1964
Supreme Court


Case number: Appeal (civil) 647 of 1962






DATE OF JUDGMENT: 14/02/1964


CITATION:  1964 AIR 1254            1964 SCR  (6) 780

ACT: Benami  Transaction-Protection under s. 66-If  available  to transferee- Sub-s. (2) applies to creditors-Suit for adverts possession, if lies--Code of Civil Procedure, 1908 (Act 5 of 1908), s. 66. 781

HEADNOTE: The  appellant K claimed certain property alleging  that  he had purchased it from one A, who had purchased it benami  in the  name  of  one H, and H in turn had sold  it  to  S  the respondent. Held:     (i) The protection available by s. 66 of the  Code of  Civil  Procedure  is  not  only  against  the  certified purchaser  but also against anyone claiming through him  and s. 66 bars the claim. The second sub-section refer to the claims of creditors  and not  of transferees, which is dealt with in the  first  sub- section. (ii) If  the possession of the real owner ripens into  title under the Limitation Act and he is dispossessed, he can  sue to  obtain  possession,  for he does not then  rely  on  the benami nature of the transaction.  But the alternative claim must be clearly made and proved.  Adverse possession must be adequate  in continuity, in publicity and extent and a  plea is  required  at the least to show when  possession  becomes adverse so that the starting point of limitation against the party affected can be found. Sukan v. Krishnand, I.L.R. 32 Pat. 352, Sri Bhagwan Singh v. Ram Basi Kuer, A.I.R. 1957 Pat 157 and Bishun Dayal v. Kesho Prastid, A.I.R. 1940 P.C. 202. referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 647 of 1962. Appeal by special leave from the judgment and decree  ,dated December  3,  1959 of the Patna High Court  in  Appeal  from Appellate Decree No. 642 of 1957. S.   P. Varma, for the appellant. S.   P.  Sinha, Shahzadi Mahiuddin and  Shaukat  Hussain.for the respondent.



February 14, 1964.  The Judgment of the Court was  delivered by HIDAYATULLAH, J.-This is an appeal by special leave  against the  judgment  of  the High Court  of  Patna  reversing  the concurrent  judgments of the two courts below, and  ordering the  dismissal of the suit of the appellant.  The  appellant is  Syed  M.  Karim,  son of one  Syed  Aulad  Ali  and  the respondent Mst.  Bibi Sakina (defendant No.11) is transferee of the properties in dispute from Hakir Alam (defendant  No. 2),  son-in-law  of Syed Aulad Ali.  The appellant,  in  his turn, is a transferee of the same properties from his father Syed Aulad Ali. 782 The  suit  was  brought for declaration of  Title  and  con- firmation  of possession or in the alternative for  delivery thereof  against several defendants in respect of  this  and other properties.  We are not concerned in this appeal  with the other defendants or the other properties.  This part  of the  appellant’s suit was based on the allegation that  Syed Aulad Ali had purchased the suit properties on May 28,  1914 at a court sale, benami in the name of his son-in-law  Hakir Alam.  The reason for the benami purchase was that under the rules  of  the  Darbhanga  Raj  where  Syed  Aulad  Ali  was employed,   persons  serving  in  certain  capacities   were prohibited from purchasing at court sales.  The sale  certi- ficate  was  issued in the name of Hakir Alam who  was  then living with Syed Aulad Ali.  On January 6, 1950, Syed  Aulad Ali sold ;the property to his son the present appellant  and Hakir Alam sold the property in his turn to Bibi Sakina  and the present suit was filed for the above reliefs. In  this appeal, it has been stressed by the appellant  that the  findings  clearly establish the benami  nature  of  the transaction  of  1914.   This  is,  perhaps,  true  but  the appellant cannot avail himself of it.  The appellant’s claim based upon the benami nature of the transaction cannot stand because s. 66 of the Code of Civil Procedure bars it.   That section  provides that no suit shall be  maintained  against any person claiming title under a purchase certified by  the Court on the ground that the purchase was made on behalf  of the  plaintiff  or  on behalf of someone  through  whom  the plaintiff claims.  Formerly, the opening words were, no suit shall  be maintained against a certified purchaser. and  the change was made to protect not only the certified  purchaser but any person claiming title under a purchase certified  by the  Court.   The  protection is  thus  available  not  only against the real purchaser but also against anyone  claiming through  him.   In  the  present  case,  the  appellant   as plaintiff  was  hit by the section and the  defendants  were protected by it, It  is contended that the case falls within the second  sub- section under which a suit is possible at the instance of  a third  person  who wishes to proceed against  the  property. though’  ostensibly sold to the certified purchaser, on  tie ground  that it is liable to satisfy a claim of  such  third person                             783 against  the  real  owner.   Reliance  is  placed  upon  the transfer by Syed Aulad Ali in favour of the appellant  which is  described as a claim by the transferee against the  real owner.   The  words of the second sub-section refer  to  the claim  of  creditors and not to the claims  of  transferees. The  latter are dealt with in first sub-section, and if  the meaning sought to be placed on the second sub-section by the appellant were to be accepted, the entire policy of the  law would be defeated by the real purchaser making a transfer to



another and the first sub-section would become almost a dead letter.   In  our  opinion, such a  construction  cannot  be accepted and the plaintiff’s suit must be held to be  barred under s. 66 of the Code. As an alternative, it was contended before us that the title of  Hakir  Alam was extinguished by long  and  uninterrupted adverse  possession of Syed Aulad Ali and after him  of  the plaintiff.  The High Court did not accept this case.  Such a case  is,  of  course, open to a plaintiff to  make  if  his possession  is  disturbed.  If the possession  of  the  real owner  ripens into title under the Limitation Act and he  is dispossessed,  he can sue to obtain possession,for  he  does not  then rely on the benami nature of the transaction.  But the alternative claim must be  clearly made andproved.   The High Court held that the plea of adverse possession was  not raised  in  the suit and reversed the decision  of  the  two courts  below.   The plea of adverse  possession  is  raised here.    Reliance   is  placed  before  us   on   Sukan   v. Krishanand(1)  and Sri Bhagwan Singh and others v. Ram  Basi and others(1) to sumit that such a plea is not necessary and alternatively,  that  if  a plea is required,  what  can  be considered  a proper plea.  But these two cases  can  hardly help the appellant.  No doubt, the plaint sets out the  fact that  after  the purchase by Syed Aulad Ali, benami  in  the name   of  his  son-in-law  Hakir  Alam  Ali  continued   in possession  of  the property but it does not say  that  this possession was at any time adverse to that of the  certified purchaser.  Hakir Alam was the son-in-law of Syed Aulad  Ali and was living with him.  There is no (1)  I.L.R. 32 Pat. 353. (2) A.I.R. 1957 Pat. 157. 784 suggestion  that  Syed Aulad Ali ever  aserted  any  hostile title against him or that a dispute with regard to ownership and possession had ever arisen.  Adverse possession must  be adequate  in continuity, in publicity and extent and a  plea is  required  at the least to show when  possession  becomes adverse so that the starting point of limitation against the party affected can be found.  There is no evidence here when possession  became  adverse, if it at all did,  and  a  mere suggestion  in the relief clause that there was an  uninter- rupted  possession  for  "several  12  years"  or  that  the plaintiff had acquired "an absolute title" was not enough to raise  such  a  plea.  Long possession  is  not  necessarily adverse possession and the prayer clause is not a substitute for  a  plea.  The cited cases need  hardly  be  considered, because each case must be determined upon the allegations in the plaint in that case.  It is sufficient to point out that in  Bishun  Dayal v. Kesho Prasad and another  [A.T.R.  1940 P.C.  202],  the  Judicial  Committee  did  not  accept   an alternative case based on possession after purchase  without a proper plea. Reading the plaint as a whole, we agree with the High  Court that  a case based on possession after the purchase was  not stated  in the plaint and the decision of the High Court  in the  circumstances of this case was therefore  proper.   The appeal fails and is dismissed with costs. Appeal dismissed.