SARDAR ALI KHAN, J.

( 1 ) THIS LPA is directed against the judgment dated 11-6-84 passed by a learned single judge in CCCA No. 292/82.

( 2 ) THE plaintiff is the appellant before us. He filed the suit for partition of the plait schedule property. The plaintiff and the defendant are real brothers. The suit property which is a house, was purchased jointly in their names under Ex. B. l, registered sale deed. According to the evidence addused in the suit, the plaintiff is living in a portion of the house and the defendant is getting the rents for the other portion of the house. The case ot the defendant is that the house was purchased jointly in their names but the entire consideration was paid by the defendant alone and consequently the plaintiff has no title or right or interest in the suit property. The defendant asserts that no part of the consideration was paid by the plaintiff and hence he alone is the owner of the entire suit property.

( 3 ) THE trial court found that the property belongs to the defendant and that the sale deed was taken nominally in the joint names of both the plaintiff and the defendant and that the defendant was in exclusive possession and hence perfected his title by adverse possession.

( 4 ) THE learned Single Judge held that on a consideration of the evidence on record, both oral and documentary, it is clear that consideration for the sale transaction was paid by the defendant alone. He initially paid a sum of rs. 350/- and subsequently the balance at the time of registration of the sale deed. Further more, learned counsel appearing on both sides agreed that the payment was made by the defendant as per the recitals of Ex. B. l sale deed. Therefore, it was held that the consideration was paid by the defendant alone and consequently the other aspects were wholly irrelevent. The plea of joint ownership was also rejected as the parties happen to be muslims. In the above view of the matter, the learned single judge held that the plea of the joint ownership, set up by the plaintiff, is not true and valid. He further held that since the defendant had no children, he had taken the sale deed in the names of himself and his brother, the plaintiff. On the question of possession, it was held that the defendant is in possession and paying the kist. The learned Single Judge, therefore, dismissed the appeal and confirmed the judgment and decree passed by the trial court. Aggrieved by the judgment of the learned single judge, this LPA has been filed by the plaintiff.

( 5 ) THE judgment of the learned single judge was rendered on 11th day of june, 1984 when the Benami Transactions (Prohibition) Act, 1988 (Act No. 45 of 1986), hereinafter referred to as "the Act", had not come into force. Under sec. 3 of the said Act a complete prohibition of benami transaction has been imposed. Sec. 3 reads as follows:"3. Prohibition of benami transactions:- (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal procedure, 1973 (2 of 1973) the pffence under this section shall be non-cognizable and bailable. "thus, a reading of the above section makes it clear that it is prospective in operation and a complete ban has been imposed on benami transactions, with a penal clause under sub-sec. (3) of Sec. 3. Under Section 4 of the Act, prohibition of the right to recover property held benami has been imposed. It would not be out of place to re-produce Section 4 of the Act, which is in the following terms:"4. Prohibition of the right to recover pro

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