1. This is an appeal by special leave against the judgment of the High Courtof Patna reversing the concurrent judgments of the two courts below, andordering 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 (defendantNo. 11) is transferee of the properties in dispute from Hakir Alam (defendantNo. 2), son-in-law of Syed Aulad Ali. The appellant, in his turn, is atransferee of the same properties from his father Syed Aulad Ali.
2. The suit was brought for declaration of title and confirmation ofpossession or in the alternative for delivery thereof against severaldefendants in respect of this and other properties. We are not concerned inthis appeal with the other defendants or the other properties. This part of theappellant's suit was based on the allegation that Syed Aulad Ali had purchasedthe suit properties on May 28, 1914 at a court sale, benami in the name of hisson-in-law Hakir Alam. The reason for the benami purchase was that under therules of the Darbhanga Raj where Syed Aulad Ali was employed, persons servingin certain capacities were prohibited from purchasing at court sales. The salecertificate was issued in the name of Hakir Alam who was then living with SyedAulad Ali. On January 6, 1950, Syed Aulad Ali sold the property to his son thepresent appellant and Hakir Alam sold the property in his turn to Bibi Sakinaand the present suit was filed for the above reliefs.
3. In this appeal, it has been stressed by the appellant that the findingsclearly establish the benami nature of the transaction of 1914. This is,perhaps, true but the appellant cannot avail himself of it. The appellant'sclaim 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 suitshall be maintained against any person claiming title under a purchasecertified by the Court on the ground that the purchase was made on behalf ofthe plaintiff or on behalf of someone through whom the plaintiff claims.Formerly, the opening words were, no suit shall be maintained against acertified purchaser, and the change was made to protect not only the certifiedpurchaser but any person claiming title under a purchase certified by theCourt. The protection is thus available not only against the real purchaser butalso against anyone claiming through him. In the present case, the appellant asplaintiff was hit by the section and the defendants were protected by it.
4. It is contended that the case falls within the second subsection underwhich a suit is possible at the instance of a third person who wishes toproceed against the property, though ostensibly sold to the certifiedpurchaser, on the ground that it is liable to satisfy a claim of such thirdperson against the real owner. Reliance is placed upon the transfer by SyedAulad Ali in favour of the appellant which is described as a claim by thetransferee against the real owner. The words of the second sub-section refer tothe claim of creditors and not to the claims of transferees. The latter aredealt with in first sub-section, and if the meaning sought to be placed on thesecond sub-section by the appellant were to be accepted, the entire policy ofthe law would be defeated by the real purchaser making a transfer to anotherand the first sub-section would become almost a dead letter. In our opinion, sucha construction cannot be accepted and the plaintiff's suit must be held to bebarred under s. 66 of the Code.
5. As an alternative, it was contended before us that the title of HakirAlam was extinguished by long and uninterrupted adverse possession of SyedAulad Ali and after him of the plaintiff. The High Court did not accept thiscase. Such a case is, of course, open to a plaintiff to make if his possessionis disturbed. If the possession of the real owner ripens into title under theLimitation Act and he is dispossessed, he can sue to obtain possession, for hedoes not then rely on the benami nature of the transaction. But the alternativeclaim must be clearly made and proved. The High Court held that the plea ofadverse possession was not raised in the suit and reversed the decision of thetwo courts below. The plea of adverse possession is raised here. Reliance isplaced before us on Sukan v. Krishanand I.L.R. 32 Pat. 353 and Sri BhagwanSingh and others v. Ram Basi and others : AIR1957Pat157 , to sumit thatsuch 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 theappellant. No doubt, the plaint sets out the fact that after the purchase bySyed Aulad Ali, benami in the name of his son-in-law Hakir Alam Ali continuedin possession of the property but it does not say that this possession was atany time adverse to that of the certified purchaser. Hakir Alam was theson-in-law of Syed Aulad Ali and was living with him. There is no suggestionthat Syed Aulad Ali ever asserted any hostile title against him or that adispute with regard to ownership and possession had ever arisen. Adversepossession must be adequate in continuity, in publicity and extent and a pleais required at the least to show when possession becomes adverse so that thestarting point of limitation against the party affected can be found. There isno evidence here when possession became adverse, if it at all did, and a meresuggestion in the relief clause that there was an uninterrupted possession for'several 12 years' or that the plaintiff had acquired 'anabsolute title' was not enough to raise such a plea. Long possession isnot necessarily adverse possession and the prayer clause is not a substitutefor a plea. The cited cases need hardly be considered, because each case mustbe determined upon the allegations in the plaint in that case. It is sufficientto point out that in Bishun Dayal v. Kesho Prasad and another , the Judicial Committee did not accept an alternative case based onpossession after purchase without a proper plea.
6. Reading the plaint as a whole, we agree with the High Court that a casebased on possession after the purchase was not stated in the plaint and thedecision of the High Court in the circumstances of this case was thereforeproper. The appeal fails and is dismissed with costs.
7. Appeal dismissed.