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TMI Blog2020 (9) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... be the subscribers and contributors to the construction, but without any evidence being led by the appellant Union that they are their members or in any manner connected with them. Therefore, a case under the Benami Prohibition Act can never be maintained by the appellant on the afore factual foundations because, if they have to do so, they would have to first establish expressly that they had contributed the entire consideration and that the purchase of the land and the construction of the building were intended for their use immediately or in future. As already seen above, when the land was purchased or when the building was constructed, the appellant Union had not come into being and it can, therefore, never be taken that they had made any contribution, either for the purchase or construction, which is ineluctable because they themselves admit that it is allegedly their members who had made the contribution but not them. However, this would not be of any avail to them, because neither is their membership register brought on record nor is there anything to establish, even in a whispering note, that the persons shown in Ext.A2 cash book or Exts.A4 to A25 receipt books ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as 'the Benami Act' for short) and they sought the following prayers:- i) Pass a decree of declaration that the plaint schedule property belongs absolutely/exclusively to the plaintiff and its members and that the defendants' title to the property is only in the fiduciary capacity. ii) pass a decree of permanent prohibitory injunction restraining the defendants or their men from forcefully taking possession of the plaint schedule property or evicting the plaintiff's members from the plaint schedule property. iii) to pass such other reliefs that the plaintiff may pray for iv) cost of the proceedings 5. The appellant states that, while so, the CPI filed O.S.N.771 of 2006, claiming that the plaint schedule property and the building thereon belong to them and thus sought specific recovery of the same, along with an amount of ₹ 18,000/- per year from them for its alleged illegal use and occupation. 6. According to the appellant, even though substantial evidence have been led by them in assertion of their plea that the plaint schedule building and property belong to them exclusively, though it was registered as a Benami o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building the workers set apart the share of their daily wages and utilizing the funds so collected the plaintiff has constructed the three storied building which is consisting of ground floor and two upper stories. The plaintiff members have done the manual work while constructing the building. And ever since the purchase of the plaint schedule property and construction of the building the plaintiff's workers are assembled in the building disbursing from there and using it as their place for work, assembling and other ancillary matters, After some time of grouping together the plaintiff's workers decided to form a trade union in the name and style 'Truipunithura Mandalam General Workers Union with its Registration No.107/1973, Thereafter on the basis of necessity for political affiliation the workers suggested by late Mr.Murali decided to affiliate with AITUC. They got affiliated to AITUC and it was only for the limited purpose of trade union activities and not for the purpose acquiring the plaint schedule property and its rights, authority or user. After the death of Murali the labourers of the defendants started dictatorial and absolutely political activities ignor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to them; and that since the land is in their name, the building was also assessed so. They thus submit that the assertions of the appellant-Union as afore in their suit, are completely without basis, since all those persons who had contributed for purchase of the land and many who had thereafter done so for the construction of the building thereon, were admittedly members of a Trade Union affiliated to them and consequently that the plea of Benami transaction would not apply at all. 13. Shri.K.Sasikumar, learned counsel appearing for the appellant-Union, vehemently submitted that the documents on record, namely, Exts.A2 to A32, would crystally establish that the subscriptions for purchase of the land and for the construction of the building were made by the members of his client. He says that, therefore, when the source of money for the purchase of the land and the construction of the building is so indubitably established, the mere factum of registration of the same in the name of the CPI would be of no avail to them; and that the said transaction would therefore, be hit expressly by the provisions of the Benami Act. In support thereof he shows me the definition of the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chased in the name of the CPI and that the building was also constructed with such intent. He thus prays that both these appeals be dismissed. 18. Before I venture to consider the dialectical contentions of the learned counsel as above, I must certainly record that there is a major obstacle that stares at the appellant Union. This is because, the appellant Union concedes that they came into existence only in the year 2004. However, the transactions involved in the case, namely purchase of the land and construction of the building, were much before it. 19. Obviously, therefore, their assertion that they should be construed to be the owners of the land and the building - in the absence of any of the persons who had subscribed to the purchase and construction of the same in the party array - will have to be viewed as being a factor against the maintainability of the suit itself, since ironically, if this Court is to now allow O.S.No.668 of 2005 and declare that the property belongs to the appellant Union, that itself would be in violence of the Benami Prohibition Act, going by the very same provisions relied upon by Shri.K.Sasikumar. 20. To clarify it further, it is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very honest man, instead of purchasing it in his own name, registered the land in the name of CPI, of which he was the Secretary. 25. These assertions can be proved only if the persons who made the contribution had been impleaded in the array of parties and their deposition recorded, but cannot be proved at the instance of the Union, which admittedly came into existence much after in the year 2004. These statements, therefore, can have no persuasive effect on the Court at all, since the Union appears to be making these averments merely on the basis of hearsay and nothing else. 26. Similar is the situation with respect to the construction of the building. The evidence available with respect to the same are contained in Exts.A2 to A32, which are the Cash Book, Receipt Books and the Statement of Expense and Accounts with respect to the construction of the building. Even a close look through these documents would show that various people had made contribution - including the public who had no direct connection either to the CPI or to the appellant Union, which becomes indubitable because even institutions are shown therein to have made substantial contributions. 27. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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