Benami act 1988
I m made to understand that in the case of a benami propperty if the possession of the suit property is not with the benamidar & if infact the real owner is in actual physical possession of the suit property then benami act 1988 will not help the benamidar to file a suit for recovry of possession even though the property stands in the name of benamidar. in other words if benamidar (plaintiff) is not in possession of the suit property which is infact in possession & enjoyment of the real owner then sec. 4(2) of the act will not be of any help to dismiss the plea of benami raised in the w.s. of the defendant/real owner. this is because despite there being a bar under the act imposed on the real- owner to recover the property,the benamidar cannot succeed because in the case in hand the real-owner.is not trying to "recover" the property from the benamidar as the real-owner is already in possession of the suit property. . therefore it is necessary that the benamidar be in possession of the suit property on the date of the suit..
is the above correct.
what is the case law applied.