S.M.KARIM versus MST. BIBI SAKINA

Even so, learned counsel for the resflondent contended that in the view taken by the High Court it had become unnecessary for it to give its findings on two of the important issues that arose in the case, namely, issues 3 a.'!d 4, which are as follows :

IPM

Hiralal-Prabhu- that in the view taken by the High Court it had become

bhai ram Subba Rao J.

Nagind:· Atma- issues that arose in the case, namely, issues 3 a.'!d 4, which

Issue 3. Whether the plaintiff proves that he wants possession for bona fide personal cultivation.

Issue 4. Whether the defendant proves that he had not damaged the suit property in view of the decision in Reg. C. Suit No. 619 of 1950 by the Joint Civil Judge (J.D.J, Surat;

He, therefore, pointed out that the matter would have to be remanded to the High Court for its decision on the said two points.

In view of the supervening circumstances, it is not

possible to accede to this argument. As pointed out earlier,

on April 23, 1951, the respondent issued the notice on the

ground that the tenancy of six years would expire on March 31, 1952. But by reason of the 1939 Act the tenancy was statutorily extended till 1956. So the said notice had become ineffective and the respondent would not be entitled to any relief on its basis. It would be open to him to take any appropriate proceedings, which the law allows, m proper tribunal. In the circumstances the only course open to us is to set aside the decree of the High -Court and to restore that of the Dirstict Judge. The parties will bear their respective costs throughout.

Appeal allowed.

February 14.

S. M. KARIM

MST. BIBI SAKINA

(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)

Benami Transaction-Protection under s. 66-lf available to transfertt-Sub-s. (2) applies to creditors-Suit for adverse possession, if lie.r-Code of Civil Procedure, 1908 (Act 5 of 1908), •· 66.

6 S.C.R.

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 in turn had sold it to S the respondent.

Held: (i) The protection available by s. 66 of the Code of Civil l'rocedure is not only against the certified purchaser but atso 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, 'vhich 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 ..::an sue to olS'tain possession, for he does not then rely on th'.::: benan1i 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 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, l.L.R. 32 Pat. 352, Sri Bhagwan Sbigh v. Ram Basi Kuer, A.J.R. 1957 Pat 157 and Bishun Dayal v. Kesho Prasud, A.l.R. 1940 P .C. 202, referred to.

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 Mohiuddin 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 Saldna (defendant No. 11) is transferee of the properties in dispute from !fakir Alam (defendant No. 2), son-in-law of Syed Aulad Ali. The appellant, in his turn, is transferee of the same properties frpm his father Syed ulad Ali. ·

1964 S. M. Karim v. Bibi Sakina.

Hidayat•l/ah J.

7'32 SUPREME COURT REPORTS

The suit was brought for declaration of atle and con-firmation of possession or in the alternative for delivery thereof against several defendants in respect of this and otl1er properties. We are not concerned· in this appeal with J, the other defendants or the oilier properues. This part of the appellant's suit was based on tlle allegation that Syed Aulad Ali had purchased the suit properties on May 28, l914 at couPt 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 Au!ad 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.

J9M S. M. Karim •. Bibi Sakina. Hidayatullah

In this appeal, it has been stressed by tlie appellant that lhe findings clearly establish the benami nature of the trans-action 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 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 certified purchaser. and the change was made to protect not only the certified purchaser but any person claiming title under 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 wi.thin tlie second sub-section under which suit is possible at the instance of third person who wishes to proceed against the i;iroperty. though ostensibly sold to the certified purchaser, on the ground that it is liable to satisfy claim of such third person

SUPREME COURT F.EPORTS

against the real owner. Reliance is placed upon the transfer by Syed Aulad Ali in favour of the appellant which is described as 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 transfer to another and the first sub-section would become almost dead letter. In our opinion, such 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 uninter-rupted adverse possession of Syed Aulad Ali and after him oI the plaintiff. The High Court did not accept this case. Such case is, of course, open to 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 and proved. 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(') and Sri Bhag-wan Singh and others v. Ram Basi and others(") to sumit that such 1! plea is not necessary and alternatively, that if plea is required, what can be considered 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

(I) I.L.R. 32 Pat. 353.

(2) A.I.R. 1957 Pat. 157.

1961 S. M. Karim •• Bibi ~aki11a Hidayatullah J.

& M. Karim •• Bibi Sakinri Hidayatullah J.

February 14.

suggestion that Syed Aulad Ali ever aserted any hostile title against him or thitt dispute with regard to ownership and possession had ever arisen. Adverse possession must be adequate in continuity, in publicity and extent and 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 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 plea. Long possession is not necessarily adverse possession and the prayer clause is not substitute for plea. The cited cases need hardly be considered, because each case must be determined upon the allegations in the plaint in tl1at case. It is sufficient to point out that in Bishun Dayal v. Kesho Prasad and another [A.I.R. 1940 P.C. 202], the Judicial Committee did not accept an alternative case based on possession after purchase without proper plea.

Reading the plaint as whole, we agree with the High

Court that 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.

R. L. ARORA

STATE OF UTTAR PRADESH AND OTHERS

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. C. DAS

GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR, JJ.)

Land Acquisition Act-Acquisition for company engaged in industry for public purpose-Provision if hit by Ari. 31(2) and Art. 19(1) of the Constitution-lnterprttation-Disthiction made be.tween Government companies, Public companies and Prtvatt companie1