JUDGMENT : Soumen Sen, J. The appeal is arising out of a judgment and decree dated 20th June, 2007 passed by the learned Civil Judge (Sr. Div.) 4th Court at Alipore in connection with two suits namely, T.S No. 87 of 2005 heard analogously with T.S.No. 61 of 2007. 2. Kalyani Jana (Sahoo) was the original plaintiff. She filed the suit being T.S. No. 164 of 1985 since renumbered as T.S. No. 87 of 2005 on 18th September, 1985 before the learned 7th Court of Subordinate Judge at Alipore. Subsequently, Ashis Kumar Sahoo and Debashis Kumar Sahoo filed a suit being T.S. No. 149 of 2003 since renumbered as T.S. No. 61 of 2007 in the Court of learned Civil Judge (Jr. Div.) 5th Court, Alipore. Both the suits were heard analogously and disposed of a common judgment and decree dated 20th June, 2007. 3. This judgment and decree is under challenged. 4. During the pendency of the suit Kalyani died and she was substituted by her legal heirs. Presently her husband and children are contesting the appeal as the legal heirs of Kalyani. 5. The centre of dispute is premises no. 528/5, Becharam Chatterjee Road (Riffle Ground), P.S. Behala, Calcutta –700 034 (hereinafter referred to as ‘the suit property’). 6. Amulya Ratan Sahoo had three sons and two daughters. Kalyani is the eldest daughter. Ashis and Debashis are the sons Banani is the youngest daughter. Amulya alleged to have purchased the suit property under deed no. 499 dated 8th February, 1980 in the name of his two sons. 7. Kalyani claimed that she was not aware of the execution of the said deed at the relevant time and after her father promised to sell the southern and northern portion of the suit premises and accepted part consideration it transpired that the suit property was purchased in the name of his brothers. The original defendant no.3 had denied to execute the deed in favour of Kalyani. 8. The suit was filed on 18th September, 1985. It was amended twice. The last amendment was made after the suit filed by her brothers in the year 2003 being T.S. 149 of 2003 in which the brothers have claimed recovery of possession after evicting Kalyani and her husband. 9. Kalyani, the original plaintiff in the plaint has stated that she was married on 7th May, 1975 in presence of the defendant no. The last amendment was made after the suit filed by her brothers in the year 2003 being T.S. 149 of 2003 in which the brothers have claimed recovery of possession after evicting Kalyani and her husband. 9. Kalyani, the original plaintiff in the plaint has stated that she was married on 7th May, 1975 in presence of the defendant no. 3, her father as one of the witnesses. At the time of marriage her father assured the plaintiff and her husband that he would arrange a house for them at Kolkata but the construction of the house was to be supervised by the husband of the plaintiff. 10. Since the husband of the plaintiff had no accommodation at Kolkata of his own at that time the defendant no. 3 allowed separate accommodation in his house at P-105 Unique Park, Behala, Kolkata-34 where the plaintiff live with her husband in order to enable the husband of the plaintiff to supervise the house. 11. The defendant no.3 assured the plaintiff that he had purchased the suit property in the name of the plaintiff and her sister, the defendant no.4 out of love and affection and it was further represented that the plaintiff would be required to construct the building in the ½ share of the plot of land on the northern side of the suit property of her own and with her own money keeping the other ½ portion vacant for the defendant no.4 on the southern side. These two plots of land have been described as the suit property. 12. On the basis of the aforesaid representation the plaintiff sold her ornaments and major share of her husband’s landed property at Midnapore and also encashed all the Fixed Deposit of her husband and her mother in law proceeds whereof amounting of Rs.51,000/- were invested for constructing the house of the northern side of the suit property consisting of two bed rooms, one garage, unfinished staircase of the rooms, grills, safety tanks etc. The said construction was started in 1982 and while the said construction was continuing they were prevented for continuing the said construction. In or about 9th March, 1984 the defendant no.3 informed the plaintiff to purchase the other ½ share of the southern side of the suit property reserved for the defendant no.4 at a consideration of Rs.25,000/-. The said construction was started in 1982 and while the said construction was continuing they were prevented for continuing the said construction. In or about 9th March, 1984 the defendant no.3 informed the plaintiff to purchase the other ½ share of the southern side of the suit property reserved for the defendant no.4 at a consideration of Rs.25,000/-. The plaintiff arranged the said amount and paid the said sum in cash on 14th August, 1984 in presence of the defendant no1 and other relations. The defendant no.3 accepted the said money and assured the plaintiff the he would execute and register a deed of conveyance within January, 1985 for both the plots in favour of the plaintiff but had subsequently refused to execute any such document and a deed of declaration relinquishing his right in the suit property. The defendant no. 3 with the help of some antisocial elements forced to sign the deed of declaration and threatened her with dire consequences in any event of any refusal to comply with his commands. In view of the complaint made by her against her father and Behala SDO she was not allowed to construct on the suit property. 13. The first suit was filed on the basis of the aforesaid pleadings with the following prayers: (i) For a decree, declaring that plaintiff is the owner of both Southern and Northern portion of the premises no. 528/5, Becharam Chatterjee Road (Riffle Ground), P.S. Behala, Calcutta -34. (ii) For a decree declaring the defendants no. 1, 2 and 5 has no right, title and interest in the suit property. (iii) For a decree declaring that the deed no. 499 dated 08.02.1980 registered in book no. 1, Volume No. 46, pages 153 to 157 for the year 1980 in the sub-registry at Alipore is void and sham deed. (iv) For a decree declaring that the right, title and interest of the plaintiff in the said property is free from all encumbrances. (v) Permanent injunction. (vi) Costs of the suit. vii) Any other relief/reliefs the plaintiff is entitled to get in law or in equity. 14. On 16th December, 1996 Kalyani filed an application for amendment of the plaint. It was alleged that in view of subsequent disclosure by her father defendant no. (v) Permanent injunction. (vi) Costs of the suit. vii) Any other relief/reliefs the plaintiff is entitled to get in law or in equity. 14. On 16th December, 1996 Kalyani filed an application for amendment of the plaint. It was alleged that in view of subsequent disclosure by her father defendant no. 3 in paragraph 9 of his written statement that suit property was purchased in the name of his two sons which is contrary to the earlier representation that was referred to in paragraph 5 of the original plaint, it has now become necessary to amend the plaint for effective, adjudication of the disputes between the parties by incorporating the following paragraphs: “i) That on the own admission of the defendant No. 3 in Paragraph 9 of the written statement the defendant No.3 is the real owner of the suit property although title deed dated 8.2.1980 stand in the name a of defendants 1 and 2 who are nothing but the name lenders and/or benamaders of defendant No.3 being their father inasmuch as defendants 1 and 2 at the relevant time of purchase had no independent income and means to purchase the said property with their own money and as such the said transaction of sale is not hit by the Benami Transactions (Prohibition) Act, 1988 in view of the Hon'ble Supreme Court's decision reported in AIR 1996 SC 238 holding subsections (1) and (2) of Section 4 of the said Act as not retrospective but prospective in operation overruling earlier decision reported in AIR 1989 SC 1247 . (ii) That on 23.3.1996 the defendant No.5 Purnendu Sahoo assisted by the defendants and their associate committed house trespass and forcibly destroyed plaintiffs newly built staircase along with staircase room built at a cost of Rs. 50,000/- (Rupees Fifty Thousand) only and the defendants, breaking open the lock at the grilled gate forcibly entered the house and by breaking the lock of the almirah took away valuable ornaments valued at about Rs. 30,000/- and cash of Rs. 20,000/-. The defendants also took away the file where important documents and records relating to the suit were kept, and assaulted the plaintiff along with the her family's members, and on 7.6.1996 they also dugout plaintiff's tube well on the southern portion of the suit property causing loss thereby to the extent of Rs. 30,000/- and cash of Rs. 20,000/-. The defendants also took away the file where important documents and records relating to the suit were kept, and assaulted the plaintiff along with the her family's members, and on 7.6.1996 they also dugout plaintiff's tube well on the southern portion of the suit property causing loss thereby to the extent of Rs. 15,000/- (fifteen thousand) that on 4.8.1996, 4.9.1996 and 5.9.96 they also trespassed and made forcible entry into the suit land by breaking open the padlock of the grill gates of the plaintiff and forcibly cut down four big fruit bearing mango trees, one big neem tree and other trees and flower plants with the help of several wood cutters engaged by defendants Nos, 1, 3 and 5 thus causing loss to the extent of Rs. 60,000/- (Rupees sixty Thousand) That on 10.3.1996 they again trespassed and forcibly entered into the suit land by breaking open the padlock of the plaintiff's grill gate and destroyed a bathroom, privy and a small room 15' x 12' feet on the southern portion of the suit land built at a cost of Rs. 50,000/- (Rupees fifty thousand). Apart from the loss to the tune of about Rs. 27,000/- (Rupees Twenty seven thousand) since the defendants by application of force took away about 10,000/- bricks stone cheeps measuring 200 cubic feet, one truck of gravels and one truck of sands measuring about 250 cubic feet which kept by the plaintiff for her constructional work. The defendants together with their associates forcibly took away those materials and utilised in construction in the said suit plot by use of physical force and threat. That by the aforesaid unlawful act and vandalism of the defendants, their men, agents and associations plaintiff sustained financial loss and as such claims damage and compensation against the said defendants to the extent of Rs. 2,52,000/- (Rupees Two lakhs, fifty two Thousand) only and hence this amendment of the plaint praying degree for the said amount of Rs. 2,52,000/- towards damage and compensation for the loss sustained by the plaintiff. (iii) That the plaintiff values the said suit for damage and compensation tentatively at Rs. 2,52,000/- (Rupees Two lakhs, fifty two Thousand) only and hence this amendment of the plaint praying degree for the said amount of Rs. 2,52,000/- towards damage and compensation for the loss sustained by the plaintiff. (iii) That the plaintiff values the said suit for damage and compensation tentatively at Rs. 100/- (one hundred) and additional court fees will be paid on the said enhanced value over and above the value stated in the original plaint and the plaintiff undertakes to pay further additional and deficit court fees for the amount of damage and compensation which will be ultimately assessed and decreed by the learned court. (iv) That as the defendant No. 5 purchased the southern portion of the suit property on 16.11.1985 from the defendant 1 and 2 who were mere benamdars of their father defendant No.3 being the real owner did not acquire any valid right title interest and physical possession of the suit property and took forcible possession on 4.9.96 from the plaintiff and defendant No. 5 having started construction forcibly from 10.9.96 after having notice of the pendency of Title suit No. 164 of 1985 through service of notice of the application under order 1 Rule 10 read with section 151 of the code of Civil procedure through registered post which was duly received by him on 15.7.1996 and as such the entire construction having been made unlawfully and wrongfully after the notice of the said Title suit the said defendant No. 5 is liable to remove and dismantle the said wrongful construction from the southern pro- portion of the suit land for giving the vacant peaceful possession of the said portion to the plaintiff and for which the plaintiff prays for mandatory injunction and/or order for removing the unlawful structure at his own cost upon the defendants no.5.” 15. In the event of such amendments being allowed Kalyani had prayed for inclusion of the following additional reliefs: “i) For a declaration that defendant no. 3 suit is the real owner of the property including the southern half portion the of which was sold by the defendant no. 1 and 2 on 16.11.1985 to defendant no. In the event of such amendments being allowed Kalyani had prayed for inclusion of the following additional reliefs: “i) For a declaration that defendant no. 3 suit is the real owner of the property including the southern half portion the of which was sold by the defendant no. 1 and 2 on 16.11.1985 to defendant no. 5 who did not acquire any valid right, title and interest by such purchase from the defendants 1 and 2 who were mere name lenders or benamdars of defendant no.3 (ii) For a decree for damages and compensation from the defendants to the extent of Rs.2,52,000/- (Rupees two lakhs fifty two thousand) only for the loss sustained by the plaintiff as stated above. (iii) For a decree granting mandatory injunction and/or necessary order U/s. 37 of the Specific Relief Act, 1963 read with Section 151 of the Civil Procedure Code upon the defendants No.5 directing him by mandatory order to remove the unauthorized and wrongful construction from the southern half portion of the suit property and deliver vacant peaceful possession thereof to the plaintiff within specified time fixed by the Court.” 16. The aforesaid amendment was allowed on contest. 17. During the pendency of the suit the brothers have filed a suit for eviction as stated above in the year 2003. After the suit was filed Kalyani filed a second application for amendment on 4th May, 2007. It is stated in the said petition that in view of fraudulent representation made by the defendant no. 3 to the plaintiff that the suit property was purchased by the said defendant in the name of the plaintiffs and defendant no. 4 and subsequent disclosure by the defendant no. 3 in his letter dated 10th August, 1984 in which it was admitted that the property was purchased the name of the defendant no. 1 and 2 it has now become necessary to amend the plaint to bring true pictures for effective adjudication by incorporating the following paragraphs in the plaint. “i) That on the own admission of the defendant no. 3 in his letter dated 10.08.1984 the defendant no. 3 is the real owner of the suit property although title deed dated 08.02.1980 stand in the names of defendants 1 and 2 who are nothing but the namelenders and/or benamdars of defendant no. “i) That on the own admission of the defendant no. 3 in his letter dated 10.08.1984 the defendant no. 3 is the real owner of the suit property although title deed dated 08.02.1980 stand in the names of defendants 1 and 2 who are nothing but the namelenders and/or benamdars of defendant no. 3 being their father in as much as defendants 1 and 2 at the relevant time of purchase had no independent income and means to purchase the said property with their own money, and as such the said transaction of sale is not hit by the Benami Transactions (Prohibition) Act, 1988 in view of the Hon’ble Supreme Court’s decision reported in AIR 1996 SC 238 holding subsections (1) and (2) of Section 4 of the said Act as not retrospective but prospective in operation overruling earlier decision reported in AIR 1989 SC 1247 . (ii) That as the defendant no. 5 purchased the southern portion of the suit property on 16.11.1985 from the defendants 1 and 2 who were mere benamdars of their father defendant no. 3 being the real owner did not acquire any valid right, title and interest.” 18. In aid of the aforesaid amendment the plaintiff proposed incorporation of the following additional prayers: “i) For a decree declaring that the deed no. 15325 registered in book no. I, Vol no. 268, pages 457 to 466 in the year 1985 in sub Registry Behala/Alipore is a void and sham deed and inoperative documents. (ii) For a decree, the defendant no. 3 should be commended by a decree to execute and register a sale deed in respect of the southern portion of the suit property and deed of gift in respect of the northern portion with specific time and without any default.” 19. The said amendment was allowed on contest. 20. The defendant no. 1 and 2 in the written statement has categorically denied the title of the plaintiff and has asserted that they became the owners of the suit property in the year 1980 by virtue of a deed of sale executed in their favour by the vendor. The defendant also denied in the written statement that any assurance being given to the plaintiff or the defendant no. 4 ever that defendant no. 3 would sell the suit property in their favour or that the suit property was purchased in the name of defendant no. The defendant also denied in the written statement that any assurance being given to the plaintiff or the defendant no. 4 ever that defendant no. 3 would sell the suit property in their favour or that the suit property was purchased in the name of defendant no. 1 and 2 by the defendant no. 3 and the real owner is the defendant no.3. 21. The defendant no. 3, the father filed a written statement in the year 1987. In the said written statement the defendant no. 3 has stated that at the time of the marriage of Kalyani defendant no. 3 at the request of Kalyani and her husband allowed them to live in a portion for a short duration so that they might in the meantime find out an alternative accommodation. The defendant no. 3 denied that the suit property was purchased by him in the name of defendant no. 1 and 2 or any assurance was given to the plaintiffs that the said property would be given to the plaintiff in order to enable her to make construction. The father had denied that the plaintiff had no legal right in respect of the suit property. The construction of the suit property at the relevant time was made by the defendant no. 1 and 2 with their own money. He denied of having any discussion with regard to the sale of the suit property or any deed being produced before him for signature. 22. The defendant no. 3, however, did not file any written statement after the amended plaints have been served upon him. He did not file any affidavit of evidence nor he depose in the suit. 23. The brothers of Kalyani in their written statement and also during their evidence have stated that Kalyani married Nirmal on her own choice while she was a student. Kalyani used to reside in a tenanted room at Behala nearer to the residential house of the defendant no.1 and 2. Nirmal was a school teacher of a primary school. Due to misconduct he was suspended from his job in the month of April, 1976. Nirmal expressed his difficulties to live in the tenanted house with Kalyani. Kalyani was preparing for her examination. Nirmal was a school teacher of a primary school. Due to misconduct he was suspended from his job in the month of April, 1976. Nirmal expressed his difficulties to live in the tenanted house with Kalyani. Kalyani was preparing for her examination. All on a sudden four months after the marriage Kalyani along with her husband arrived at the matrimonial home on a plea that they have been evicted from the tenanted premises and out of sympathy Amulya allowed them to stay with him and requested them to find out an alternative accommodation elsewhere or to return to her matrimonial home at Midnapore. The brother out of sympathy agreed to grant them leave and licence for some time and allow them to stay for a short time within which they were expected to find out an alternative arrangement. 24. However on September 18, 1985 Kalyani instead of vacating the house filed a declaratory suit motivatedly. 25. Mr. Nirmal Jana, husband of Kalyani appear in person and has submitted that there is a concluded contract between Kalyani and her father in relation to the suit property by which her father had expressed his desire to sell the suit property to Kalyani for a valuable construction. His father in law has clearly represented to Kalyani that the property was purchased in the name of Kalyani and her younger sister which would be in due course of time handed over to them. However, he did not disclose the true facts. The property appears to have been purchased in the name of two sons and thereby depriving his two daughters. Mr. Jana has referred to the evidence of the parties and submits that Exbts. 7 and 8 should establish the contract entered into between Kalyani and her father in relation to the sale of the suit property. It is submitted that the Kalyani was put to possession in the suit premises on the basis of the said agreement for sale and Kalyani had spent and invested substantial amount in raising construction in order to make the suit property habitable and due to threat of dispossession Kalyani filed applications for amendment of the original plaint. The amendments were also necessary due to subsequent event and disclosure made in the written statement by the contesting defendants concerning the suit property. 26. Mr. The amendments were also necessary due to subsequent event and disclosure made in the written statement by the contesting defendants concerning the suit property. 26. Mr. Arijit Bardhan, learned Counsel appearing on behalf of the respondents have submitted that the prayers made in the original plaint could not have been granted without there being a prayer for specific performance. The prayer for specific performance was made only in the year 2007 which is clearly barred by limitation. Kalyani could not have prayed for a declaration of ownership without a prayer being made for specific performance of the agreement alleged to have been entered into between Kalyani and her father. There is no prayer for cancellation of the deed dated February, 1980 on the basis of which the brothers of Kalyani became the owner. In fact, in her cross examination the plaintiff admitted that the sale deed dated 8th February, 1980 and 16th November, 1985 are not illegal. It is submitted that the reliefs claimed are mutually destructive as on the one hand the plaintiff has prayed for a decree of ownership of the suit property and on the other she has prayed that the defendant no. 3 is the owner of the suit property. This is clearly impermissible in law and reiterated in various judicial pronouncements including the recent decision of the Hon’ble Supreme Court in Kesar Bai v. Genda Lal & Anr., reported in 2022 (10) SCC 217 . The relief for a decree of execution of the sale deed in respect of the southern portion of the suit property and a deed of gift of the northern portion of the suit property were introduced by an amendment in 2007. The cause of action if any, in respect of both the reliefs had arisen in 1985 and hence the said reliefs are clearly barred by limitation. Even if, it is submitted that the defendant no. 3 continued to remain as owner of the suit property, decree for execution of a deed of gift in respect of northern portion of the suit property cannot be granted by way of specific performance. The defendant no. 3 could not have been compelled or directed to execute the deed of gift since the execution of the deed of gift is an outcome of volition of the doner. It is submitted that much reliance has been placed on Exbt. The defendant no. 3 could not have been compelled or directed to execute the deed of gift since the execution of the deed of gift is an outcome of volition of the doner. It is submitted that much reliance has been placed on Exbt. 7 however, the description of the exhibit in the list of exhibits would show that it refers to the certified copy of the order passed in OS no 4 of 1987 before the learned 6th Addl. District & Sessions Judge, Alipore whereas the document filed and relied upon as Exhibit 7 was the certified copy of the letter dated 1st March, 1984 and Exbt. 8 is the certified copy of the application dated 4th November, 1984 filed in OS. 4 of 1987. It is submitted that the plaintiff in her deposition had claimed that there is an agreement dated 4th November, 1984, however, the suit was not filed on the strength of the said agreement. 27. Mr. Bardhan has referred to cross examination of PW1 resumed on 24th May, 1987 and has drawn our attention to the following extract of the said cross examination: “There is an agreement dated 4th November, 1984. I have filed the said agreement. I have not filed any suit on the strength of the said agreement. This is the only suit which I have filed. Not a fact that the agreement dated 4th November, 1984 does not bear the signature of my father or brothers. It is fact that no agreement for sale was executed by my father or defendants no. 1 and 2 to me and my husband”. 28. In view thereof, it is submitted that the appellants cannot rely on the said document in support of the claim for execution of the deed of conveyance in respect of the southern portion of the suit property. Moreover, even it is assumed that the letter marked as Exbt. 7 is the agreement it is inadequately stamped and inadmissible in evidence and cannot be looked into in view of the decision of the Hon’ble Supreme court in V.E. Venkatachola Gounder v. Arulmigu Viswasdraswami & V.P. Temple reported in 2003(8) SCC 752 paragraph 20. 29. Mr. Bardhan has submitted that the plea of benami was clearly time barred. In the original plaint no declaration was claimed that her brothers are not the original owners. 29. Mr. Bardhan has submitted that the plea of benami was clearly time barred. In the original plaint no declaration was claimed that her brothers are not the original owners. After the coming into force of the Benami Transaction (Prohibition) Act, 1988 she could not make any claim that her brothers are mere namelender. The application for amendment to introduce such pleading and consequential relief was made on 16th December, 1996. In view of the judgment in R. Rajagopal Reddy (death) by L.Rs and Ors. v. Padmini Chandrasekharan (dead) by LRs, reported in AIR 1996 SC 238 ; 1995 (2) SCC 630 Section 4 of the Benami Act is held to only prospective and accordingly the said claim is clearly barred by law. 30. Mr. Bardhan submits that in the event the deed of 1980 is declared void then plaintiff does not share the suit property. The plaintiff was unable to discharge her burden of proof to show that the property was purchased by the father in the name of his sons. The burden of proof showing it was a benami transaction is on the plaintiff. The plaintiff has to prove that the purchase even if it is assumed to be made by the father in favour of his sons, was not for their benefit. The plaintiff has failed to establish the said fact. It is submitted that in her cross examination the plaintiff has admitted that there was no agreement for sale between the father and the plaintiff or her husband. 31. Mr. Bardhan has submitted that the plaintiff in the alternative and in argument has tried to make out the case of irrevocability of the licence granted by the defendant no. 3 or the defendant no. 1 and 2, on the ground that the plaintiff raised certain construction on the basis of the permission given by her father to stay at the suit property. Mr. Bardhan submits that a licence become irrevocable under Section 60(b) of the Easements Act, 1882 provide the following three conditions are satisfied as stated in Panchugopa Barka & Ors. v. Umesh Chandra Goswami & Ors., reported in 1997 (4) SCC 713 paragraph 10: i) That the occupier must be a licensee (ii) That he should have acted upon the licence, (iii) And executed a work of a permanent character and incurred expenses for the execution of the work. 32. Mr. v. Umesh Chandra Goswami & Ors., reported in 1997 (4) SCC 713 paragraph 10: i) That the occupier must be a licensee (ii) That he should have acted upon the licence, (iii) And executed a work of a permanent character and incurred expenses for the execution of the work. 32. Mr. Bardhan has submitted that Kalyani in paragraph 10 of the plaint has been clearly stated that the defendant no. 3 did not allow the plaintiff to construct on the suit property. Any expenditure alleged to have been incurred without any prior permission cannot make a licence irrevocable. 33. In the suit filed by the brothers against their sister and her husband they have clearly claimed the ownership of the suit property by virtue of the deed of sale dated 8th February, 1980 and they have reiterated that the sister was occupying the suit premises purely on a temporary measure as licencee. 34. In the aforesaid backdrop the judgment of the trial court is required to be considered. 35. The present appellants have an insurmountable difficulty to overcome. Kalyani is tried to establish her title in the suit property on the basis of an agreement dated 4th November, 1984. Kalyani although has stated in her evidence that he has filed the said agreement but we could not find form the list of exhibits that any such agreement, in fact, has been filed and marked as exhibits. Kalyani has stated that she came to the present address in the year 1984 although in the plaint it is stated as 1982. She has stated that she started making construction in 1982 without having any plan sanctioned by the corporation. The title deed of 8th February, 1980 and 16th November, 1985 according to Kalyani are not illegal. In a way she accepted the validity of the said agreement. She has stated in her deposition that at the time of purchase of the property on 8th February, 1980 her brothers were minors and she became aware of the fact on 1st March, 1985 that her father had purchased the suit property in the name of her two brothers on 8th February, 1980, after making search regarding the suit property. She has stated in her deposition that at the time of purchase of the property on 8th February, 1980 her brothers were minors and she became aware of the fact on 1st March, 1985 that her father had purchased the suit property in the name of her two brothers on 8th February, 1980, after making search regarding the suit property. Curiously, she did not challenge the said deed on the ground that although the suit property was purchased in the name of her brothers the real owner is her father, meaning thereby that the brothers are mere Benamders and namelenders. She filed an application for amendment of the plaint to challenge the said deed in 1996 which she could not have challenged by reason of coming into force of Benami Transaction (prohibition) Act, 1988. The said Act is held to be prospective in R. Rajagopal Reddy (supra) and followed in subsequent decisions namely Vijay Kumar v. Dharam Pal, reported in 2009 (3) SCC 319 and Samitri Devi v. Sampuram Singh, reported in 2011 (3) SCC 556 the basis of the challenge in the suit with regard to the validity of the deed of 1980 was that the father although had represented and assured that the suit property would be purchased in the name of Kalyani and her younger sister, it transpired later that they were purchased in the name of his two sons. Even if we assume that in 1984 or 1985 Kalyani became aware of the existence of the said deed and she has specifically stated in her cross examination on 23rd May, 2007 that she came to know all the aforesaid fact on 1st March, 1985 the time to challenge the suit had expired by the time the amendment applications were filed. The said deed could not have been challenged by way of an amendment in 1996, since the plea of Benami in view of the aforesaid decisions was no more available to Kalyani in 1996. A fresh suit for cancellation of the deed on the ground of Benami transactions in view of Section 4 of the Benami Transactions Act, 1988 would have been barred in 1996. 36. Moreover, the prayer for specific performance of the contract was made in 2007 which has also clearly barred by law of limitation. Kalyani has failed to prove readiness and willingness to perform her contract. 36. Moreover, the prayer for specific performance of the contract was made in 2007 which has also clearly barred by law of limitation. Kalyani has failed to prove readiness and willingness to perform her contract. The refusal to perform the contract according to the plaint had arisen in 1984, however, she did not seek for specific performance of the contract in the original plaint. The said prayer was introduced by way of an amendment in 2007 after she was faced with a suit for eviction from her brother in 2003. Kalyani also could not describe salient features of the agreement for sale that was presumed to have been entered into between herself and her father. Kalyani relied upon the agreement of 4th November, 1984 but in her deposition she has stated that she has not filed any suit on the strength of the said agreement. The question arises on the basis of which agreement the suit was filed. It was more in the nature of discussion between the plaintiff and her father since deceased where presumably some assurance were given to her of a plot of land which were to be divided between Kalyani and her younger sister. In fact, as Mr. Bardhan has rightly pointed out, she cannot compel her father to execute the deed of gift in favour of her younger daughter. The defendant/respondent no.4 did not file any suit or any written statement in the suit supporting the plaintiff. A challenge to the sale deed with proper pleadings in time could have saved the plaintiff and restored her 1/5th share in the suit property even if the suit for specific performance failed as we are convinced that her brothers did not have wherewithal to buy the suit property as the amount was quite substantial at the relevant point of time and subsequent correspondence by and between daughter and her father would show that the father was, in fact, asserting his right in respect of the suit property as owner which was only possible provided he remained as a true owner and his two sons were the ostensible owners. 37. 37. Notwithstanding unsatisfactory evidence of her brothers in the suits for eviction to the extent of their tall claim of financial means to buy the property in question with their own funds and on the basis of such purchase assert their right of ownership and claim eviction of their sister on the ground of revocation of licence the fact remains that challenge to the transactions culminating to the ownership of the suit property by her brothers became barred by law by reason of Section 4 of the Benami Transaction (Prohibition) Act, 1988 by the time the amendment application was filed. 38. However, brothers in their suit for eviction did not claim to be an ostensible owner although they had the opportunity to plead and possibly they could have succeeded in proving acquisition of title as benamdars as on the basis of Exhibit 7 it is difficult for them to contend that they were the real owners of the suit property at the material time. It is trite law that one who asserts must prove his case. The burden of proof to show that they purchased the suit property out of their own fund remains with them which they have miserably failed to establish in the suit for eviction where their title was disputed. The ownership is based on title claimed to have been acquired by them with their own fund. 39. In view of the aforesaid facts it is a pyrrhic victory for the parties as the only relief available to the parties is a partition by metes and bounds. Kalyani, her brothers and younger sister shall have 1/5th share in the suit property. However, we do not want to disturb the sale in favour of the respondent no.5 as valuable right has accrued in his favour in the meantime and he is a bona fide transferee for value without notice. The defendant no.5 had paid the money in good faith. In any event the said transfer was not originally challenged on the ground of nemo dat quod non habet. Moreover, the said deed should be held to be a transfer by the defendant no.3 in favour of defendant no.5. 40. In the facts and circumstances of the case we mould the reliefs. The decree passed in both the suits are set aside. Moreover, the said deed should be held to be a transfer by the defendant no.3 in favour of defendant no.5. 40. In the facts and circumstances of the case we mould the reliefs. The decree passed in both the suits are set aside. It is hereby declared that Kalyani and now her legal heirs shall have 1/5th share in the suit property excluding the property sold in favour of the defendant no.5. In the event no amicable partition takes place within a period of two months the parties shall apply in T.S. No. 87 of 2005 for appointment of an advocate commissioner to effectuate partition in accordance with the shares declared that is, 1/5th each. However, as clarified the legal heirs of the original defendant no.3 shall have no claim in respect of the property already sold to the defendant no.5 and that property shall stand excluded from partition. 41. In the event of a commissioner is appointed considering the nature and extent of the property, the nature of occupation of the parties we feel that the shares of the appellant may be valued and adjusted by way of payment of owelty money. However, the matter is left to the discretion of the Commissioner to take an appropriate decision upon consideration of all the relevant factors. The entire process should be completed within four months from the date of appointment of commissioner by the learned trial court. 42. Both the appeals are allowed in part. The judgment and decree of the learned Trial Court is set aside. 43. The department is directed to draw up the decree as expeditiously as possible and send down the LCR immediately thereafter. I agree. Uday Kumar, J.