( 1 ) LEAVE granted.

( 2 ) THE enviable position to which the tenant of a shop building has ensconced himself as corollary to the judgment of the High court (under appeal now) is that he need not thenceforth be accountable to any landlord. On the one side when the claim of appellant to be the landlord has been discountenanced by the High court, at the other side the person whom the tenant proclaimed as his landlord has disclaimed the credential. If the judgment of the High court remains in force the tenant stands elevated virtually to the status of owner of the suit building. But appellant is not prepared to concede defeat and hence he has come up with this appeal by special leave.

( 3 ) FACTS which led to the aforesaid position can be summarised thus: Respondent was the tenant of the suit building (consisting of a shop room and godown premises) which belonged to one Narain Prasad. As per a sale deed executed on 23/1/1989 (Ext. P. 11 Narain Prasad transferred his rights in the suit building to theappellant. On its footing appellant filed Civil Suit No. 75-A of 1990 for eviction of the respondent under Section 12 (1 (a)of the M. P. Accommodation Act, 1961 (for short "the Act") on the ground that respondent has not paid rent to the appellant. That suit was contested by the respondent raising the contention that the building was actually purchased by Pyarelal (father of the appellant) as per Ext. P11-sale deed and appellant is only a namelender therein, and hence appellant is not entitled to get the eviction order or the rent of the building. In that suit the court found that appellant is the real owner of the building pursuant to Ext. P. 11- sale-deed and that he was entitled to receive rent of the building. However, the suit was dismissed as the respondent deposited the arrears of rent in court during pendency of that suit but appellant was permitted to withdraw the arrears of rent so deposited by the respondent as per the judgment rendered in that suit.

( 4 ) APPELLANT filed the present suit (No. 304-A of 1994 under Section 12 (1 ) (f) of the Act for eviction of the respondent on the ground that appellant requires the building bona fide for the purpose of starting a business of his own. Respondent contested the suit and in the written statement he contended, inter alia, that appellant is only benami to his father Pyarelal in Ext. P. II-sale deed and the real transferee was Pyarelal. Respondent further contended that the sale in favour of the appellant is void as it is forbidden under Section 3 of the Benami Transaction (Prohibition) Act, 1988, (for short the "the Benami Act" ).

( 5 ) ONE of the issues raised by the trial court in the present suit is whether respondent is precluded from raising the issue regarding benami nature of Ext. P. II-sale deed, due to the bar of res judicata. The trial court held that the finding in the previous suit (No. 75-A of 1990 against the respondent would not operate as res judicata as the said suit was ultimately dismissed. The trial court then proceeded to consider whether appellant is only a benamidar under the aforesaid sale deed. The court concluded that appellant is the real transferee under the sale deed and is entitled to institute the suit. It was further found that appellant bona fide requires the building for his own business purpose. On the strength of such findings a decree was granted by the trial court for eviction of the respondent.

( 6 ) THE District court in the first appeal filed by the respondent upheld all the findings arrived at by the trial court and dis- missed the appeal. A second appeal was preferred by the respondent before the High court of Madhya Pradesh. During arguments learned single judge permitted the appellant to raise the plea of res judicata while supporting the decree for eviction.

( 7 ) HOWEVER, learned single judge of the High court held that there is no bar of res judicata for the respondent in raising the contention regarding the title of the appellant o