Bhangi Bhagat vs Ramayan Dubey and Others

B.P. Jha, J.—Defendant fourth party preferred the second appeal before this Court. The plaintiff''s filed the suit for a declaration of title and recovery of possession in respect of the suit land. Plaintiff No. 1 was Suraj Dubey, son of Jagdeo Dubey, Plaintiff No. 2 was son of Suraj Dubey. The admitted case of the parties is --

(i) that the suit land originally belonged to the grandfather of plaintiff No. 2, that it Jagdeo Dubey ;

(ii) that the suit land was sold in auction for arrears of rent; and

(iii) that in an auction sale Jagdeo Dubey purchased the suit property in the name of Amar Missir (defendant No. 4). In other words, the case of the plaintiffs was that the disputed land was purchased by the Jagdeo Dubey in the benami name of Amar Missir. It is also the case of the plaintiffs that Jagdeo Dubey, grandfather of plaintiff No. 2, came in possession of the suit land, as he was the real purchaser.

The suit was contested by defendant fourth party on the ground that the suit was hit by Section 27(1) of the Bihar & Orissa Public Demands Recovery Act, 1914. In other words, the claim of defendant fourth party is that such suit is not maintainable in view of Section 27(1) of the said Act.

The short point for consideration in this appeal is whether the suit is filed by the plaintiffs is hit by Section 27(1) of the Bihar & Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as the Act) ? In the present suit the plaintiffs claimed that the suit property was purchased in the benami name of Amar Missir. Such a suit is prohibited by the provision of Section 27(1) of the Act. It is relevant to quote Sub-section (1) of Section 27 of the Act.

No suit shall be maintained, against any person claiming title under a purchase certified by the Certificate Officer is such manner as may be prescribed, on the ground that the purchase was made on behalf of the plaintiff or on behalf of some one through whom the plaintiff claims.

Section 27(1) of the Act provides that no suit shall be maintained against the certified purchaser and any person claiming title under a purchase certified by the Certificate Officer. It is, therefore, clear that the protection can be claimed not only by the real purchaser but also by any one claiming through him. In the present case, the plaintiffs brought the suit on the ground that the pre-decessor-in-interest of the plaintiffs was the real purchaser and the purchase was made in the benami name of Amar Missir. In my opinion, Section 27(1) of the Act prohibits such suit. In this view of the matter, I hold that the present suit filed by the plaintiffs was hit by Section 27(1) of the Act and defendant fourth party was protected by it.

Learned counsel for the respondents contends that the suit can succeed if there is an alternative plea of adverse possession. In my opinion, if a suit is brought on the ground of benami nature of transaction as well as, in the alternative on the basis of adverse possession, the suit can succeed against the certified auction-purchaser, if it is proved that the real owner was in adverse possession of the suit land. In this connection, learned Counsel for both the parties relied on a decision of the Supreme Court in S.M. Karim Vs. Mst. Bibi Sakina, . In my opinion, the decision of the Supreme Court applies to'' the facts of this case. It is open to the plaintiff or the defendant to raise the alternative plea of adverse possession in a case of this type, and the plaintiff or defendant can succeed in the suit provided the pleading and the issues are clear to that effect. If the pleading in respect of the adverse possession is not clear then the plaintiff will be debarred from raising issue in the Courts. The defendant also can resist the suit filed by the certificate purchaser on the ground of adverse possession. The defendant can also succeed in resisting the claim of the certified purchaser on the ground of adverse possession, proved such plea is specifically raised and issues are framed to this effect by the trial Court.

The plaintiffs, in the present case, brought the suit only on the ground of benami transaction. It is conceded by counsel for both the parties that the plea of adverse possession was not specifically raised by the plaintiffs in the plaint. Hence, I hold that the suit was hit by Section 27(1) of the Act and is not maintainable under that provision. Hence, I set aside the judgment and decree of the lower appellate Court. Defendant fourth party appellant succeeded before the trial Court. The Lower Appellate Court set aside the judgment without examining the applicability of Section 27(1) of the Act.

The law may be briefly stated thus ? u/s 27(1) of the Act no suit shall be maintained against a certified purchaser as well as against a person claiming title under a purchase certified by the Certificate Officer. The provision of Section 66(1) of the CPC is identifical to Section 27(1) of the Act. In other words, if a suit is brought by a reat owner against a benami purchaser, who purchased the property in an auction purchase the suit shall not be maintainable u/s 27(1) of the Act. Such suit shall be hit by the provisions of Section 27(1) of the Act. There is no bar for a real owner to claim alternatively that he is in adverse possession of the suit land. For that purpose the plaintiff will have to plead specifically and prove adverse possession. In the same suit the plaintiff can base title on the benami transaction as well as, in the alternative, can claim adverse possession. Similarly, the defendant real owner can also prove adverse possession in a case where a benami purchaser brings a suit for declaration of title and recovery of possession.

In the result, appeal is allowed, the judgment and decree of the Lower Appellate Court are set aside and the suit is dismissed. The parties will bear their own costs throughout.