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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 ..... , which is also the 1st defendant in the former suit. 4. The appellant explains that they were constrained to file O.S.No.668 of 2005 since the plaint schedule land and building were attempted to be taken forcible physical possession by the CPI, on the allegation that they are the owners of the same. The appellant says that, contrary to the assertions of CPI as afore, the land and the building described in the plaint schedule, were purchased and constructed by their members, though it was registered in the name of the CPI. They thus contend that this amounts to a transaction under the Benami Transactions (Prohibition) Act 1988, (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. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... workers. And that the plaintiff's decided to purchase their ownland in the name of Mr. Murali. Mr. Murali belonged to the Communist Party of India. And on the instructions and believing his leadership agreements were executed for purchasing the property and the plaint schedule property is purchased as instructed by Murali in his name. But the document is in the name of Communist Party of India represented by District Secretary Mr.Murali. The entire money for the purchase of the property was contributed by the plaintiff member workers. The entire amounts have been spent by them. For constructing the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "fiduciary capacity", thus further seeking an injunction against them from taking its physical possession. 12. As seen above, while so, the CPI filed O.S.No.771 of 2006, wherein, they contended that the plaint schedule land and building were purchased in their name, as is evident from the title documents; and that the persons who had contributed to the purchase of the land in the year 1994 were members of the Trade Union affiliated to them. They also say that, subsequently, the building was constructed by obtaining public contribution, based on a call made by the Secretary of the Trade Union affiliated 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the assertion of the appellant-Union that their members had contributed to the purchase of the land and for the construction of the building cannot be found to be true at all, since even they admit that, at the time when it was so done, these persons were the members of the Trade Union affiliated to the CPI. 17. Shri.V.Rajendran says that, therefore, the plea of the appellant - Union under the provisions of the Bemani Prohibition Act would not apply at all, since even the plaint averments in O.S.No.668 of 2005 would make it without any reservation that the land was intended to be purchased 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has dismissed O.S.No.668 of 2005 for other reasons - presumably because the afore contention was never raised - it is incumbent on this Court to look into this also, since the very edifice of the suit is shaken by the absence of such evidence or information placed on record. 24. Be that as it may, the plaint averments in O.S.No.668 of 2005 is to the effect that certain workers had made contribution for the purpose of purchase of a land and that they wanted it to be in the name of the afore mentioned Shri.Murali. It is also affirmed by them that Shri.Murali, who was a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are their members or in any manner even remotely connected with them. 30. To exacerbate this, the members of the Union have not been made parties, either as appellants or as respondents, and in their absence on the party array, the allegations made in the plaint in O.S.No.668 of 2005 can certainly never be proved. 31. Now coming to O.S.No.771 of 2006, from which R.F.A.No.748 of 2008 arises, it has been filed by the CPI seeking recovery of possession of the plaint schedule land and building based on title. 32. Since the appellant - Union unequivocally admits that the title documents are in the name of the CPI - though claiming it to be a Benami Transaction as said above - their only burden to be discharged was to establish that the Union is in possession of the building and the property without any legal sanction. 33. At this juncture, it is relevant that the appellant - Union does not assert any rights over the property as a trespasser or as an interloper, but solely as the title holder, invoking the provisions of the Benami Prohibition Act. They do not even say that they have a licence to remain in the property or that there is any other interest created in their favour by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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