Case Note & Summary
This was an appeal by special leave against a judgment of the Patna High Court which reversed the concurrent judgments of two courts below and ordered dismissal of the appellant's suit. The appellant, Syed M. Karim, sought a declaration of title and confirmation of possession, or in the alternative delivery of possession, over certain properties. The respondent, Mst. Bibi Sakina, was a transferee of the disputed properties from Hakir Alam, the son-in-law of Syed Aulad Ali, in whose name the properties had originally been purchased at a court sale. The appellant claimed that his father, Syed Aulad Ali, had purchased the suit properties on 28 May 1914 at a court sale, benami in the name of Hakir Alam, because rules of the Darbhanga Raj prohibited employees of certain capacities from purchasing at court sales. On 6 January 1950, Syed Aulad Ali sold the property to the appellant, and Hakir Alam sold the same property to Bibi Sakina, leading to the suit. The trial court and the first appellate court had decreed the suit in favour of the appellant. The Patna High Court, in Appeal from Appellate Decree No. 642 of 1957, reversed these concurrent findings and dismissed the suit. The appellant then obtained special leave and filed Civil Appeal No. 647 of 1962 before the Supreme Court. The core legal issues were whether the suit based on the benami nature of the 1914 purchase was barred by Section 66 of the Code of Civil Procedure, 1908; whether the second sub-section of Section 66 permitted a suit by a transferee from the real owner, as opposed to a creditor; and whether the appellant's alternative claim of title by adverse possession was properly pleaded and proved. The appellant argued that the findings clearly established the benami nature of the transaction, but that he could still sue under the second sub-section of Section 66 because the transfer from Syed Aulad Ali to him made him a third person with a claim against the real owner. He also contended that the title of Hakir Alam had been extinguished by long and uninterrupted adverse possession of Syed Aulad Ali and thereafter the appellant. In support of the adverse possession plea, he relied on Sukan v. Krishnand and Sri Bhagwan Singh v. Ram Basi Kuer. The respondent contended that the suit was barred by Section 66 and that the adverse possession plea had not been raised in the plaint. The Supreme Court held that Section 66 of the Code of Civil Procedure barred the suit. The protection of the section was available not only against the certified purchaser but also against anyone claiming title under a purchase certified by the court. The appellant as plaintiff was directly hit by the section. The court rejected the argument that the second sub-section applied to transferees, stating that the words of the second sub-section referred only to claims of creditors, not transferees. Accepting the appellant's construction would defeat the legislative policy and make the first sub-section a dead letter. On the alternative claim of adverse possession, the court observed that such a claim must be clearly made and proved. Adverse possession must be adequate in continuity, publicity, and extent, and a plea is required to show when possession became adverse. The plaint merely stated that Syed Aulad Ali continued in possession; it did not allege hostile title or any dispute. A prayer clause mentioning uninterrupted possession for several twelve years or absolute title was not a substitute for a proper plea. The cited cases were distinguished, and it was noted that in Bishun Dayal v. Kesho Prasad the Privy Council had not accepted an alternative case based on possession after purchase without a proper plea. Reading the plaint as a whole, the court agreed with the High Court that no case based on adverse possession was stated. Accordingly, the Supreme Court dismissed the appeal with costs, affirming the Patna High Court's judgment and decree.
Headnote
A) Civil Procedure - Benami Transactions - Bar of Suit Against Certified Purchaser and Those Claiming Through Him - Code of Civil Procedure, 1908, Section 66 - The appellant claimed title through a benami court purchase made in the name of his father's son-in-law, but Section 66 provides that no suit shall be maintained against any person claiming title under a purchase certified by the court on ground of benami. The protection is available not only against the certified purchaser but also against anyone claiming through him. The appellant as plaintiff was hit by the section and the defendants were protected by it. Held that the claim based on benami nature was barred (Paras Not mentioned). B) Civil Procedure - Interpretation of Section 66(2) - Sub-section (2) Applies to Creditors, Not Transferees - Code of Civil Procedure, 1908, Section 66(2) - The appellant contended that the transfer from the real owner to him made him a third person entitled to sue under the second sub-section. The Court held that the words of the second sub-section refer to the claim of creditors and not to the claims of transferees. Accepting the appellant's construction would defeat the entire policy of the law and render the first sub-section almost a dead letter. Held suit barred under Section 66 (Paras Not mentioned). C) Limitation - Adverse Possession - Requirements of Plea and Proof - Limitation Act - 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. The plaint only stated that the father continued in possession after the benami purchase; there was no suggestion of hostile title or dispute. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. Referred to Sukan v. Krishnand, Sri Bhagwan Singh v. Ram Basi Kuer, and Bishun Dayal v. Kesho Prasad. Held that the alternative claim based on possession after purchase was not stated in the plaint and could not be accepted (Paras Not mentioned).
Issue of Consideration
Whether the suit based on a benami court purchase was barred by Section 66 of the Code of Civil Procedure, 1908; whether the second sub-section of Section 66 applied to transferees as opposed to creditors; whether the appellant's alternative claim of title by adverse possession was properly pleaded and proved
Final Decision
The appeal was dismissed with costs. The Supreme Court affirmed the Patna High Court's judgment and decree, which had reversed the concurrent judgments of the two courts below and dismissed the appellant's suit.
Law Points
- Section 66 CPC bars suits against certified purchaser or anyone claiming through him
- protection available against real purchaser and those claiming through him
- sub-section (2) applies only to creditors
- not transferees
- adverse possession requires clear plea showing when possession became adverse
- continuity
- publicity
- extent
- long possession not necessarily adverse possession
- prayer clause not substitute for plea
- real owner whose possession ripens into title under Limitation Act can sue if dispossessed without relying on benami
