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
section P Varma for the appellant
section P Sinha Shahzadi Mahiuddin and Shaukat Hussainfor the respondent
February 14 1964
The Judgment of the Court was delivered by HIDAYATULLAH J
This is an appeal by special leave 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 Sakina defendant No11 is transferee of the properties in dispute from Hakir Alam defendant No 2 son in law of Syed Aulad Ali
The appellant in his turn is a transferee of the same properties from his father Syed Aulad Ali
782 The suit was brought for declaration of Title and con firmation of possession or in the alternative for delivery thereof against several defendants in respect of this and other properties
We are not concerned in this appeal with the other defendants or the other properties
This part of the appellant s suit was based on the allegation that Syed Aulad Ali had purchased the suit properties on May 28 1914 at a court 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 Aulad Ali was employed persons serving in certain capacities were prohibited from purchasing at court sales
The sale certi ficate 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 the appellant that the 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 section 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 within the second sub section under which a suit is possible at the instance of a third person who wishes to proceed against the property
though  ostensibly sold to the certified purchaser on tie ground that it is liable to satisfy a claim of such third person 783 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 section 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 of 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 possessionfor he does not then rely on the benami nature of the transaction
But the alternative claim must be clearly made andproved
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 vs Krishanand1 and Sri Bhagwan Singh and others vs Ram Basi and others1 to sumit that such 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 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 1 ILR 32 Pat
2 AIR 1957 Pat
784 suggestion that Syed Aulad Ali ever aserted any hostile title against him or that 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 uninter rupted 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 that case
It is sufficient to point out that in Bishun Dayal vs Kesho Prasad and another ATR  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


Summary:
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 section 66 of the Code of Civil Procedure is not only against the certified purchaser but also against anyone claiming through him and section 66 bars the claim
The second sub section refer to the claims of creditors and not of transferees which 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 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
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 vs Krishnand ILR 32 Pat
352 Sri Bhagwan Singh vs Ram Basi Kuer AIR 1957 Pat 157 and Bishun Dayal vs Kesho Prastid AIR 1940 PC 202
referred to