# S. M. Karim v. Bibi Sakina. HIDAYATULLAH, J.-This is an appeal by special leave

- **Citation:** [1964] 6 S.C.R. 780
- **Court:** Supreme Court of India
- **Decided:** 1964-02-14
- **Case number:** Civil Appeal No. 647 of 1962
- **Bench:** M. Hidayatullah, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-m-karim-v-bibi-sakina-hidayatullah-j-this-is-an-appeal-by-special-leave-3219
- **Pages:** 5

## Headnote

Benami Transaction-Protection under s. 66-lf available to transferttSub-s. (2) applies to creditors-Suit for adverse possession, if lie.rCode of Civil Procedure, 1908 (Act 5 of 1908), •· 66.
-
6 S.C.R.
SUPREME COURT REPORTS
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
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
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, 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.

## Text

SUPREME COURT REPORTS
IPM
Even so, learned counsel for the resflondent contended
Hiralal-Prabhu- that in the view taken by the High Court it had become
bhai
unnecessary for it to give its findings on two of the important
Nagind:· Atma- issues that arose in the case, namely, issues 3 a.'!d 4, which
ram
are as follows :
Subba Rao J.
Issue 3. Whether the plaintiff proves that he wants
1964
February 14.
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 a 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.
S. M. KARIM
v.
MST. BIBI SAKINA
(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)
Benami Transaction-Protection under s. 66-lf available to transferttSub-s. (2) applies to creditors-Suit for adverse possession, if lie.rCode of Civil Procedure, 1908 (Act 5 of 1908), •· 66.
-
6 S.C.R.
SUPREME COURT REPORTS
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
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
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, 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
1964
S. M. Karim
v.
Bibi Sakina.
HIDAYATULLAH, J.-This is an appeal by special leave
Hidayat•l/ah J.
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 a transferee of the same properties
frpm his father Syed A ulad Ali.
·
J9M
S. M. Karim
•.
Bibi Sakina.
Hidayatullah
J,
7'32
SUPREME COURT REPORTS
The suit was brought for declaration of atle and confirmation 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
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 a 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 certificate 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 tlie appellant that
lhe 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 wi.thin tlie second subsection under which a suit is possible at the instance of a
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 a claim of such third person
6 S.C.R.
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 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
oI 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 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 Bhagwan Singh and others v. Ram Basi and others(") to sumit
that such 1! 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
(I) I.L.R. 32 Pat. 353.
(2) A.I.R. 1957 Pat. 157.
1961
S. M. Karim
••
Bibi
~aki11a
Hidayatullah J.
1961
& M. Karim
••
Bibi
Sakinri
Hidayatullah
J.
1961
February 14.
SUPREME COURT REPORTS
suggestion that Syed Aulad Ali ever aserted any hostile
title against him or thitt 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 uninterrupted 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 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
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.
R. L. ARORA
v.
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