B.L.Yadav, J.

1. This is a plaintiffs Second Appeal preferred under Sec. 100 of the Civil Procedure, Code, 1908 (compendiously "the Code") against the concurrent decree dated 4-4-1986 passed by the First Additional District Judge, Nalanda at Bihar sharif dismissing the First Appeal, and the trial court decree dated 31-7-1982 rendered by the 2nd additional Subordinate Judge, dismissing the suit, for the relief of partition of 50 paise share in the suit land "having an area of 1 acre 18 decimal of Plot No. 1321 Khata No-. 3, Tauzi No. 10633 situate in village Rampur Bagnabad, P.S. Bihar sharif District Nalanda mentioned in Schedule 1 at the foot of the plaint and to carve out separate Takhta of 50 Paisc share, with a consequential prayer to give possession of the aforesaid separate share to the plaintiff.

2. Eschewing the irrelevant facts, the material facts are that the suit land belonged to one Md. Hussain who settled an area of 59 decimals by a registered settlement deed 17-2-1948 (Ext 2) in favour of Bibi Mahfoozan wife of Sk, Leyakat Hussain (defendant No. 9) with Mir Zahur father of defendant Nos. 2 and 5 with one Akbar Imam (defendant No. 1) by virtue of another deed of settlement of the same dated 17-2-1948 and put them in possession over the same. Bibi Mahfoozan wife of said Sk. Leyakat Hussain was in need of money and so she hold an area of 59 decimals by a registered sale deed dated 6-8-1963 (Ext. 2 b) in favour of the plaintiff-appellant for a consideration of Rs. 2,000.00 and the plaintiff came in possession over the same and got his name mutated in the Sarishta of the Bihar State and used to pay rent and obtain rent receipts. In this way the plaintiff-appellant has half share, but it was in joint possession with other co-sharers, described in Schedule-!. After death of Mir Zahur Sabheb his four sons came in joint possession with the plaintiff and defendant No. 1. As the joint possession posed-difficulty, hence the present suit was filed with the aforesaid reliefs.

3. Akbar Imam (defendant No. l), Liaqat Hussein (intervenor defendant No. 9 and father of the plaintiff) contested the suit with almost the same common plea that the plaintiff has no-cause of action and the suit was barred by limitation and that plaintiff had no right, title or interest over the suit land and 59 decimals of land was purchased by a deed of settlement dated 17-2-1948 (Ext 2) by Liaqat Hussain (defendant No. 9), father of the plaintiff in farzi name of his wife Bibi Mahfoozan and it was a Bcnami Transaction. The plaintiff obtained a collusive sale deed dated 6-8-1963 from his mother Mahfoozan. who has no right to make the sale. It is further stated that the sale deed dated 6-8-1963 is illegal, collusive and void, inasmuch as the mother has no right to sell the land in favour of has son, the plaintiff, rather real owner was father of the plaintiff, Liaqat Hussain.

4. The trial court dismissed the suit and the appeal by the plaintiff before the lower appellate Court also met the same fate. Against those decrees the present Second Appeal has been filed by the plaintiff.

5. The learned Counsel for the appellant was permitted to take and argue additional points other then those formulated while admitting this appeal under Order XLI Rule 11 of the Code. It was contended that the sale deed dated 6-8-1963 Ext. 2 b), executed by the mother of the plaintiff was legal and for adequate consideration and the name of the vendor was entered in the Sarishta of the State. On enquiry made by the plaintiff he found that Bibi Mahfoozan the vendor did not disclose any defect in the property that she was not the real owner, but courts below erred in law in treating the deed of settlement dated 17-2-1948 (Ext. 2) in the name of Bibi Mahfoozan, the vendor of the plaintiff-appellant to be a Benami Transaction, here as none of the conditions of Benami Transaction were complied with, nor in the contents of the settlement deed there was any thing to indicate th