Patna High Court
Thakur Sah vs Sheo Pujan Prasad And Ors. on 29 April, 1982
Equivalent citations: AIR1982PAT185, 1982(30)BLJR393, AIR 1982 PATNA 185, 1982 BLJR 393, (1982) PAT LJR 287, 1982 BBCJ 288
JUDGMENT Birendra Prasad Sinha, J.
1. This is an appeal by the defendant-appellant. The plaintiffs filed a suit for declaration of title and confirmation of possession in respect of 2 kathas 3 dhurs of land of survey plot No. 229/1022 of khata No. 286 situate in village Hansrajpur Khurd, police station Baniapur in the district of Saran after declaring that the sale deed dated 3-7-1962 executed by defendant No. 3 in favour of defendant No. 1 was a farzi and fraudulent transaction and was not binding on the plaintiffs. The plaintiffs claimed that the disputed land belonged to them and was in their possession since before the Revisional Survey. The ex-landlords filed a rent suit for realisation of rent of khata Nos. 286 and 288 and obtained a decree. The decree was put in execution and the holding was auction-sold in 1925. The original plaintiff claimed that he along with Nathuni San, father of defendant No. 1, had jointly purchased the said holding in the auction sale but in the farzi name of one Bhaju Sah who was a relation of Nathuni Sah. According to the plaintiff, Bhaju Sah did not pay any single pie in the auction purchase and never had any concern with the auction purchased land. The plaintiff continued in possession of the disputed land of khata No. 286. The plaintiff's further case is that defendant No. 1 with intent to derive illegal gain dishonestly got a sale deed executed by defendant No. 3, son of Bhaju Sah, in respect of the disputed land on 3-7-1962 without paying any consideration. The plaintiff also claimed that the suit land had been in his possession since more than 12 years openly and his title to the same had also been perfected by adverse possession,
2. Defendant No. 1 only contested the suit and it was contended on his behalf that the suit as framed was not maintainable and was barred by Section 66 of the Civil P. C. According to the defendant-appellant, Bhaju Sah had no concern with Nathuni Sah. The lands had been purchased by Bhaju Sah alone in the auction sale and neither Nathuni nor the plaintiff had any concern therewith. According to the defendant, the plaintiff never came in possession over the disputed land and Bhaju was not a benamidar.
3. The suit was decreed on contest by the trial court. The trial Court held that the auction purchase in question in the name of Bhaju Sah was benami for Nathuni Sah and that the original plaintiff, and after his death the substituted plaintiffs acquired title to the suit land by adverse possession as well. The appeal by defendant No. 1 was dismissed by the lower Appellate Court and the findings of the trial Court were affirmed.
4. Mr. Janardan Sinha, learned counsel appearing on behalf of the appellant, contended that in view of the case of the plaintiffs that the original plaintiff had purchased the disputed land in the benami name of Bhaju Sah and the findings arrived at by the courts below, the plaintiffs cannot maintain the suit as the same was barred by Section 66 of the Civil P. C. Mr. Sinha relied upon a decision of the Supreme Court in S.M. Karim v. Mst. Bibi Sakina (AIR 1964 SC 1254) wherein it was held that Section 66 of the Code of Civil Procedure 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. It is obvious that the plaintiffs cannot maintain the suit claiming title under a benami nature of transaction. Learned counsel appearing on behalf of the plaintiff-respondents does not dispute this proposition. He, however, submitted that the plaintiffs perfected their title by long and uninterrupted possession and in view of the findings given by both the courts as regards adverse possession of the plaintiffs, this appeal should be dismissed,
5. It is no doubt true that the plaintiffs can take an alternative idea that they had acquired title by adverse possession, but then they cannot rely upon the benami nature of transaction. As was held by the Supreme Court in the above case, the alternative claim must be clearly made and proved. Mr. Janardan Sinha, the learned counsel for the appellant, submitted that a plea of adverse possession has not been raised in this case nor there is any evidence in that respect. According to him, the finding in respect of adverse possession is not based on any evidence at all.
6. Learned counsel appearing on behalf of the plaintiff-respondents drew my attention to paragraphs 2, 4 and 5 of the plaint and submitted that it hag been specifically pleaded that the plaintiffs continued in possession of the disputed land even after the auction sale and had perfected their title by adverse possession. There is no doubt that the plaint sets out the fact that after the auction purchase in the benami name of Bhaju Sah the plaintiffs continued in possession of the property but after going through the plaint I do not find that it has been anywhere stated that this possession was at any time adverse to that of the certified purchaser. In order to maintain a plea of adverse possession it must be stated that the plaintiff had ever asserted any hostile title against the real owner or that a dispute with regard to ownership and possession had ever arisen. It was observed by the Supreme Court in the above case that "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 nothing in the present case, either in the plaint or in the evidence, to show as to when the possession of the plaintiffs became adverse, if at all. A mere statement in the plaint that the plaintiffs had acquired title by adverse possession is not enough to raise such a plea. Long possession cannot necesarily be adverse possession. When asked, learned counsel appearing on behalf of the plaintiff-respondents could not point out any evidence which could indicate that the plaintiffs had acquired title by adverse possession. In such a situation the courts below were entirely wrong to give a finding of adverse possession in favour of the plaintiffs. Such a finding is not based on any evidence, in the circumstances mentioned above, it is not possible to accept the alternative case of the plaintiffs based on their possession after the auction purchase without a proper plea in that regard in the plaint,
7. In the result, this appeal succeeds and is allowed with costs. The judgment and decree passed by the courts below are set aside and the suit of the plaintiffs is dismissed.