Judgment

MOHAN, J. :- This appeal by special leave is directed against the judgment dated 3-9-91 of the High Court of Bombay, Nagpur Bench in Second Appeal No. 351 of 1991.

2. Om Parkash and Shantabai, original plaintiffs (hereinafter referred to as respondents) filed Special Civil Suit No. 44 of 1985 for recovery of possession and damages at Rs. 10,000 on the following averments.

3. A money decree was obtained in Civil Suit No. 133/64 against Balkishan and Laxminarayan. In execution of that decree, the suit house was attached and sold in court auction. Gian Chand purchased the auction sale on 26th of August, 1969 for Rs. 6771/-. He executed a gift of the same by a deed dated 7th of May, 1975 in favour of respondents 1 and 2. Since Ghanshyamdas and Gokuldas, original defendants (hereinafter referred to as the appellants) are relations, they were permitted to occupy the southern side of the suit house. On 21st of August, 1984 a notice was issued calling upon them to vacate. This was not complied with. Hence, they filed .a suit for recovery of possession and damages of Rs. 10,000/- for wrongful occupation.

4. The appellants in their written statement denied permissive occupation. According to them, the suit house was jointly purchased in the year 1948 by their grandfather, Jamnadas along with Balkishan and Laxminarayan. By reason of such purchase Jamnadas became entitled to 1/2 share in the suit house. Civil Suit No. 554 of 1964 was filed for partition and separate possession of his 1 / 2 share. That was decreed on 8-8-67. Pursuant to that decree possession of 1/2 share was obtained and the appellants were put in possession. On 5-12-71 Jamnadas executed a will with reference to this I / 2 share in favour of the appellants. He died on 18-1-76. Thus, the appellants became the owners of the suit house.

5. Jamnadas was not a party to Civil Suit No. 133 of 1964. Therefore, no decree was passed against him. The execution of the said decree, resulting . in court auction sale in favour of Gian Chand, would not be binding. Therefore, with respect of this 1/2 share of Jamnadas no title passed in favour of Gian Chand. Besides, Gian Chand was only an ostensible purchaser, the sale consideration having been furnished by judgment-debtor, Balkishan himself. The court auction sale took place during the pendency of Civil Suit No. 554 of 1964 for partition filed by Jamnadas and was, therefore, hit by Section 52 of the Transfer of Property Act (hereinafter referred to as the Act). The trial Court, on a consideration of the various issues, dismissed the suit. The matter was taken up in appeal. Pending appeal, an application for amendment was preferred to the effect that since the appellants have denied the title of the respondents and set up title in themselves, their possession had become adverse. Therefore, the claim for recovery of the possession was based alternatively on title. This amendment was allowed. The revision filed by the appellants to the High Court was unsuccessful.

6. The Appellate Court, on a consideration of the matter, directed remand. On remit, the trial Court again dismissed the suit. The matter was appealed against in Civil Appeal No. 147 of 1987. The appellate Court came to the conclusion that the court auction purchaser Gian Chand acquired valid title in view of the sale certificate issued in his favour. The plea of benami could not succeed in view of Section 66 of the Code of Civil Procedure (hereinafter referred to as the Code). The court auction sale was not hit by Section 52 of the Act. The appellants were precluded from challenging the sale in view of dismissal of the proceedings under Order 21, Rule 58 of the Code and the claim suit under Order 21, Rule 63 of the Code preferred by Jamnadas. They would constitute resjudicata. In this view, the suit was decreed. Challenging the correctness of the decree Second Appeal No. 351 of 1991 was preferred to the High Court of Bombay. The High Court concluded that in the absence of any