JUDGMENT : M.C. Jain, J. This second appeal has been filed by the defendant/appellant against the judgment and decree dated 26.11.1992 passed by Sri Pooran Singh, the then Special Judge/Additional District Judge, Bulandshahr in First Appeal No. 262 of 1974 arising out of Original Suit No. 189 of 1972 of the Court of Civil Judge, Bulandshahr. 2. The relevant facts may be stated briefly. The plaintiff/respondent No. 1 filed a suit in the trial court for the recovery of possession of the property in question against the defendant No. 1/appellant and two others arrayed as respondent Nos. 2 and 3 in this appeal, on the ground that he was the owner of the disputed kothi. The defendant No. 1/appellant is his real brother. He reposed full confidence in his brother-defendant/appellant. He was in service and sent Rs. 9,400 by bank draft to his brother defendant No. 1/appellant in 1964 and also paid to him a sum of Rs. 2,000 in cash for the purchase of land and construction of a kothi. The defendant No. 1/appellant accordingly purchased land for the construction of kothi with the money sent by him. Thereafter, he (plaintiff) sent money to his brother by different bank drafts and also made cash payments to him personally on several occasions when he came to Bulandshahr. The said money was paid by him for the construction of the kothi. In consequence of large sums of money having been sent and paid by him to his brother defendant No. 1/appellant. The kathi was constructed over the purchased land out of such funds. The defendant No. 1/appellant had no right or interest in the kothi which was his self-acquired property, viz., of the plaintiff. He (plaintiff) remained in possession of kothi and used to slay in it on his visits from the place of his service. In 1966, the defendant No. 1/appellant with the leave and licence of the plaintiff also started living therein. Later on relations between the two became strained and defendant No. 1/appellant turned hostile and dishonest, not permitting the plaintiff to stay in it. The plaintiff also discovered that the sale-deed had been got executed by the defendant No. 1/appellant of the land in his own name. Later on relations between the two became strained and defendant No. 1/appellant turned hostile and dishonest, not permitting the plaintiff to stay in it. The plaintiff also discovered that the sale-deed had been got executed by the defendant No. 1/appellant of the land in his own name. However, it did not at all affect the title of the plaintiff who was the real owner having supplied funds for the purchase of the land and construction of the kothi. By serving a notice on defendant No. 1/appellant, the plaintiff revoked his licence and also required him to deliver possession of the property to him, but to no effect. Hence arose the necessity for the filing of the suit for the relief of possession over the disputed kothi and also for being awarded mesne profits amounting to Rs. 2.400 together with future mesne profits. 3. The defence, in short, of the defendant No. 1/appellant was that he was the exclusive owner of the property in question with which the plaintiff was not at all concerned. According to him, the land had been purchased and the constructions raised by him with his own funds and he was the exclusive owner in possession thereof. Before the second marriage (gauna) of the plaintiff, his relations with him were cordial. He managed and performed the marriage of the plaintiff in 1968 spending huge amount. Whatever amount was paid by the plaintiff to him, the same was spent in his marriage. The plaintiff never sent any money for the purchase of the land and constructions. Actually, the plaintiff used to send the money to him for the maintenance and education of his step-brothers and the same was spent on his step-brothers as per his instructions. With such main allegations, he prayed for the dismissal of the suit. 4. Oral and documentary evidence was adduced from both the sides. The trial court, however, dismissed the plaintiff's suit on appraisal of the evidence adduced by the two sides. Feeling aggrieved, the plaintiff preferred appeal. The first appellate court, on parallel accounting to the oral and documentary evidence adduced by the two sides, found in favour of the plaintiff holding that the defendant No. 1 had purchased the land and constructed the building with the funds supplied by him (plaintiff) and that he (plaintiff) was the real owner of the property in question. The first appellate court, on parallel accounting to the oral and documentary evidence adduced by the two sides, found in favour of the plaintiff holding that the defendant No. 1 had purchased the land and constructed the building with the funds supplied by him (plaintiff) and that he (plaintiff) was the real owner of the property in question. The first appellate court, therefore, reversed the judgment passed by the trial court whereby the suit of the plaintiff had been dismissed. As the first appeal succeeded, the judgment and decree passed by the trial court were set aside and the plaintiff's suit for recovery of possession was decreed. The defendants were directed to hand over the peaceful possession of the property in question to the plaintiff within one month, failing which the plaintiff was entitled to take possession through the machinery of the Court. 5. Naturally, now it is defendant No. 1/appellant who has felt aggrieved by the judgment and decree passed by the first appellate court and he has preferred this second appeal. 6. While admitting the appeal, this Court formulated the following point of law for decision in this appeal. "Whether the suit filed by the plaintiff-respondent was not maintainable and was clearly barred by the provisions of Section 4 of Benami Transaction (Prohibition) Act, i.e., Act No. 45 of 1988 and, therefore, the judgment and decree passed by lower appellate court is not legally sustain able?" 7. I have heard Sri S.K. Singh for defendant No. 1/appellant and Sri R.N. Singh for the plaintiff/respondent No. 1. I have also carefully waded through the record of the case. It is needless to say that shorn of factual controversy which stands concluded, in second appeal, this Court has to address itself and, decide only the above question of law formulated at the time of admission of the appeal. 8. To appreciate and decide the above question of law, it would be appropriate to reproduce below Section 4 of Benami Transaction (Prohibition) Act. 1988 in extenso : "4. Prohibition of the right to recover property held benami.-(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such properly. Prohibition of the right to recover property held benami.-(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such properly. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply : (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family ; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity." 9. The argument of the learned counsel for defendant No.1/appellant is that the suit filed by the plaintiff/respondent No. 1 was hit by the above provision of law and in this view of the matter, the judgment and decree passed by the lower appellate court are not at all legally sustainable. He has placed reliance on the case of Mithilesh Kumar and Another Vs. Prem Behari Khare, (1989) 2 SCC 95 , in which the provisions of the Benami Transaction (Prohibition) Act, 1988 were interpreted and it was held that the subsequent events could be taken note of and that the provision of Section 4 of the Act was retroactive in operation. The facts of that case were that the plaintiff had filed the suit for declaration that he was the real owner of the suit house and that the transaction was benami. The suit was decreed by the trial court and the decree was affirmed by the appellate court. The Act came into force during the pendency of the appeal before the Supreme Court. The suit was decreed by the trial court and the decree was affirmed by the appellate court. The Act came into force during the pendency of the appeal before the Supreme Court. It was in these circumstances that the Apex Court held that the subsequent events could be taken note of and the Act being retroactive in operation, the suit could not be decreed. Indeed in the present case, the first appeal was pending before the lower court when the Act aforesaid came into operation. The submission of the learned counsel for defendant No. 1/appellant is that as per the interpretation made by the Apex Court of the provisions of the Act aforesaid, the suit of the plaintiff/respondent No. 1 was not maintainable and the decree passed by the lower appellate court is not legally sustainable. 10. On the other hand, learned counsel for plaintiff/respondent No. 1 has relied on a subsequent, pronouncement of the Supreme Court in the case of R. Rajagopal Reddy and Others (deceased by legal representatives) Vs. Padmini Chandrasekharan (deceased by legal representatives), (1995) 2 SCC 630 . It has been urged that by this decision. Section 4(1) of Benami Transactions (Prohibition) Act. 1988 has been held not to be retrospective in operation and that it does not apply to pending suits already filed and entertained prior to coming into force of the same. The submission is that Mithilesh Kumari's case (supra) relied upon by the learned counsel for defendant No. 1/appellant has been overruled by this subsequent decision. 11. On consideration, I find that the argument of the learned counsel for plaintiff/respondent No. 1 has substantial force. Mithilesh Kumar's case (supra) had been considered in the subsequent R. Rajagopal Reddy's case of 1995. What has been stated in paragraphs 10 and 11 of R. Rajagopal Reddy's case of 1995 is relevant for the decision of the controversy at hand. The same are reproduced below : "10. It is thereafter that the Act came to be passed by both the Houses of Parliament and came into force as stated above. It might be appreciated that though the Law Commission recommended retrospective applicability of the proposed legislation. Parliament did not make the Act or any of its sections expressly retrospective in its wisdom. A bird's-eye view of the Act clearly establishes this position. It might be appreciated that though the Law Commission recommended retrospective applicability of the proposed legislation. Parliament did not make the Act or any of its sections expressly retrospective in its wisdom. A bird's-eye view of the Act clearly establishes this position. The Act being Act No. 45 of 1988 in its preamble states that it is an Act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Section 3 which is the heart of the Act imposes the required prohibition of benami transactions. It reads as under : "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 1974), an offence under this section shall be non-cognizable and bailable." A mere look at the above provisions shows that the prohibition u/s 3(1) is against persons who are to enter into benami transactions and it has laid down that no person shall enter into any benami transaction which obviously means from the date on which this prohibition comes into operation, i.e., with effect from 5.9.1988. That takes care of future benami transactions. We are not concerned with sub,-section (2) but sub-section (3) also throws light on this aspect. As seen above, ft states that 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. Therefore, the provision creates a new offence of entering into such benami transactions. It is made non-cognizable and bailable as laid down under sub-section (4). It is obvious that when a statutory provision creates new liability and new offence, it would naturally have prospective operation and would cover only those offences which take place after Section 3(1) comes into operation. Therefore, the provision creates a new offence of entering into such benami transactions. It is made non-cognizable and bailable as laid down under sub-section (4). It is obvious that when a statutory provision creates new liability and new offence, it would naturally have prospective operation and would cover only those offences which take place after Section 3(1) comes into operation. In fact, Salkia, J., speaking for the Court in Mithilesh Kumar's case has in terms observed at page 635 of the (SCC 107, para 22) that Section 3 obviously cannot have retrospective operation. We respectfully concur with this part of the learned Judge's view. The real problem centres round the effect of Section 4(1) on pending proceedings wherein claim to any property on account of it being held benami by other side is on the anvil and such proceeding had not been finally disposed of by the time Section 4(1) came into operation, namely, on 19.5.1988, Saikia, J., speaking for the Division Bench in the case of Mithilesh Kumar gave the following reasons for taking the view that though Section 3 is prospective and though Section 4(1) is also not expressly made retrospective, by the Legislature, by necessary implication, it appears to be retrospective and would apply to all pending proceedings wherein right to property allegedly held benami is in dispute, between parties and that Section 4(1) will apply at whatever stage the litigation might be pending in the hierarchy of the proceedings : (1) Section 4 clearly provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be real owner of such property. This naturally relates to past transaction as well. The expression "any property held benami is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim, or action to enforce any right in respect thereof shall lie. This naturally relates to past transaction as well. The expression "any property held benami is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim, or action to enforce any right in respect thereof shall lie. (2) Similarly sub-section (2) of Section 4 nullifies the defences based on any right in respect of any properly held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such properly. It means that once a property is found to have been held benami the real owner is deprived of such defence against the person in whose name the property is held or any other person. In other words in its sweep Section 4(2) engulfs past benami transactions also. (3) When an Act is declaratory in nature, the presumption against retro-spectivity is not applicable. A statute declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right wilt not apply in this case inasmuch as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been ceased by the Act. In one sense there was a right to recover or resist in the real owner against the benamidar. Ubi jus ibi remedium. Where the remedy is barred, the right is rendered unenforceable. (4) When the law nullifies the defences available to the real owners in recovering the benami property from the benamidar, the law must apply irrespective of the time of the benami transactions. The expression "shall lie" u/s 4(1) and "shall be allowed" in Section 4(2) are prospective and shall apply to pr (future stages) and future suits, claims or action only." (5) The word 'suits' would include appeals and further appeals as appeals are in continuation of the suits. This is an aspect of procedural law and, therefore, when procedure is changed for deciding any such proceedings between the parties the provisions of such procedural law can be applied to such pending proceedings by necessary implication. This is an aspect of procedural law and, therefore, when procedure is changed for deciding any such proceedings between the parties the provisions of such procedural law can be applied to such pending proceedings by necessary implication. (6) Repelling the contention that rights of the parties to a suit would be determined on the basis of rights available to them on the date of filing of the suit and distinguishing the judgment of this Court in Nand Kishore Marwah and Others Vs. Samundri Devi, (1987) 4 SCC 382 it was observed that the aforesaid case was for eviction where the rights of the parties on the date of suit were material unlike in this case where subsequent legislation has nullified the defence of benami-holders. 11. Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of, the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an Act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus, it was enacted to efface the then existing right of the real owners of the properties held by others benami. Such an Act was not given any retrospective effect by the Legislature. Even when we come to Section 4, it is easy to visualise that subsection (1) of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other shall lie by or on behalf of a person claiming to be the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiffs right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19.5.1988, shall not lie. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiffs right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19.5.1988, shall not lie. The Legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie", meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, the word 'lie' has been defined in connection with suits and proceedings. At page 848 of the Dictionary while dealing with Topic No. 9 under the definition of term 'He' it is stated as under : "For an action, claim appeal etc. to subsist ; be maintainable or admissible." The word "lie" in connection with the suit, claim or action is not defined by the Act. If we go by the aforesaid dictionary meaning it would mean that such suit, claim or action to get any property declared benami will not be admitted on behalf of such plaintiff or applicant against the defendant concerned in whose name the property is held on and from the date on which this prohibition against entertaining of such suits comes into force. With respect, the view taken that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). It has to be visualised that the Legislature in its wisdom has not expressly made Section 4 retrospective. It has to be visualised that the Legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigation filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however ; true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coining into operation of Section 4(1), and hence after Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive. To highlight this aspect we may take an illustration. If a benami transaction has taken place in 1980 and a suit is filed in June, 1988 by the plaintiff claiming that he is the real owner of the property and defendant is merely a benamidar and the consideration has flown from him, then such a suit would not lie on account of the provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative by June, 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which are sought to be litigated upon after coming into force of the prohibitory provision of Section 4(1) ; but that is the only effect of the retroactivity of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow. 12. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow. 12. It is abundantly clear from the above decision of the Supreme Court in which the Mithilesh Kumari's case (supra) has also been considered that the suit of the plaintiff/respondent No. 1 was not barred by the provisions of Section 4 of Benami Transactions (Prohibition) Act and as such the judgment and decree passed by the lower appellate court cannot be assailed to be unsustainable. To recapitulate, it may be stated that the suit by the plaintiff/respondent No. 1 had been filed on 17.7.1972 (before corning into force of Benami Transactions (Prohibition) Act, 1988). The trial court recorded its judgment on 17.7.1974. No doubt, the Act aforesaid came into operation during the pendency of First Appeal No. 262 of 1974 before the first appellate court, which came to be decided by it on 26.11.1992. But in view of the above decision of the Supreme Court in R. Gopal Reddy's case decided on 31.1.1995. Section 4 of the Benami Transactions (Prohibition) Act, 1988 could not bar the suit in question and it could also not affect the judgment and decree passed by the lower appellate court. To state in another way, the suit of the plaintiff/respondent No. 1 was perfectly maintainable and the judgment and decree passed by the lower appellate court are legally sustainable. 13. The legal question formulated for the decision of this appeal is answered accordingly. In view of the decision of the Supreme Court on the point of taw formulated for the hearing and decision of the appeal, the second appeal has no merit and is liable to be dismissed. 14. The appeal is hereby dismissed. The parties shall bear their own costs.