JUDGMENT : Both these appeals have been filed by the “Tripunithura Meghala Head Load and General Workers Swatantra Thozhilali Union” (hereinafter referred to as the “appellant” or “Union” for brevity), which is stated to be one registered under the provisions of the Trade Unions Act. 2. The afore appeals arise as under:- (a) R.F.A.No.81 of 2008 against the judgment of the Sub Court, Ernakulam, in O.S.No.668 of 2005 and (b) R.F.A.No.748 of 2008 against the judgment of the Sub Court, Ernakulam, in O.S.No.771 of 2006. 3. The appellant says that they had filed O.S.No.668 of 2005; while O.S.No.771 of 2006 has been filed by the Indian Communist Party (CPI for short), 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. (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 Rs.18,000/-per year from them for its alleged illegal use and occupation. 6. 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 Rs.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 one in the name of the CPI, the Trial Court dismissed O.S.No.668 of 2005 filed by them and allowed O.S.No.771 of 2006 filed by the CPI, thus granting them a decree for recovery of its possession. The appellant thus assails the judgment of the Trial Court as being illegal and unlawful. 7. I have heard Shri. K. Sasikumar, learned counsel appearing for the appellant in both the appeals and Shri. V. Rajendran, learned counsel appearing for the CPI – the common respondent. 8. The records reveal that both the suits were tried jointly by the Trial Court and Exts.A1 to A34 were marked on the side of the appellant – Union; while Exts.B1 to B5 were marked on the side of the CPI. In addition, Ext.C1 Report of the learned Advocate Commissioner was also marked; and PW1 and PW2 on the side of the appellant – Union and DW1 on the side of the CPI were examined as witnesses. 9. After analyzing the evidence on record, the Trial Court dismissed O.S.No.668 of 2005 and allowed O.S.No.771 of 2006 through the judgment which is impugned in these appeals. 10. The plaint averments in O.S.No.668 of 2005 are specifically as under:- “The plaint schedule property is situated nearby the warehousing Corporation at Pettah. The plaintiff's workers used to assemble at Pettah junction was desirous of their own premises for the purpose of various activities. They wanted to organize themselves and decided to purchase some land and construct a building for their above purpose. One Shri K. Murali, a very honest, sincere person, who was deeply involved in the welfare of the ordinary working class used to regularly visit the plaintiff's workers and guide them. The workers reposed great confidence and belief in said Murali. Said Murali used to guide and help the plaintiff's workers. One Shri K. Murali, a very honest, sincere person, who was deeply involved in the welfare of the ordinary working class used to regularly visit the plaintiff's workers and guide them. The workers reposed great confidence and belief in said Murali. Said Murali used to guide and help the plaintiff's workers. And that the plaintiff's decided to purchase their own land 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 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 ignoring the interest of the workers they tried to capture the plaint schedule properties and convert the same into the office of the trade union. The plaintiff did not accept this venture. Apart from that various activities were not acceptable to the plaintiffs. After the death of Murali the labourers of the defendants started dictatorial and absolutely political activities ignoring the interest of the workers they tried to capture the plaint schedule properties and convert the same into the office of the trade union. The plaintiff did not accept this venture. Apart from that various activities were not acceptable to the plaintiffs. Thus on unanimous decision the plaintiffs formed themselves into Tripunithura Meghala Head Load and General Workers Swatantra thozhilali Union with the Register No.7/9/04. Now the plaintiffs members are functioning through this trade union. Their right and interest for the plaint schedule property remain and is identified as the claims of the individual workers and assembled their work there. The plaintiffs are not liable to be forcefully thrown out or restricted from the user and enjoyment of this property. The plaint schedule property is purchased in the name of the defendant utilizing exclusively the contribution of the plaintiffs members. Even though the title is in the name of defendants, the property belongs to plaintiffs members. The defendant's name is mentioned in the title deed on account of organizational activities, Then leader of the plaintiffs were Murali. Since the relationship between plaintiffs members and defendants were fiduciary in nature and plaint schedule property solely for the benefit/interest/occupation of plaintiff's members, their office, place for assembling, place for disbursement, place for accounting and organizational activities, the defendants cannot claim that the plaintiffs have absolutely no legal right on the strength of title.” 11. On the afore averments, the plaintiff, as are extracted above, sought a decree of declaration that the plaint schedule property exclusively belongs to them and their members while the title of the CPI over it is only in a “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. 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 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 word 'Benami Transaction', as is available from Section 2(9) of the Act, to mean 'an arrangement were a property is transferred to or is held by a person and a consideration of such property had been provided or paid by another person'. 14. Shri. K. Sasikumar argued that this becomes manifest from the second limb of the said Section, which says that such transaction is one in which the property is held for the immediate future benefit, direct or indirect, of the person who has provided the consideration. 14. Shri. K. Sasikumar argued that this becomes manifest from the second limb of the said Section, which says that such transaction is one in which the property is held for the immediate future benefit, direct or indirect, of the person who has provided the consideration. He thus contends that when the entire consideration for purchase of the land and for construction of the building is shown, beyond doubt, to have been contributed and subscribed to by the members of the appellant-Union, the full rigour of Section 2(9) of the Act would apply, particularly because it is also admitted that the Union and its members are now in possession of the building and were always in possession, ever since it was acquired. 15. Shri. K. Sasikumar thus prays that these appeals be allowed, thus decreeing O.S.No.668 of 2005 filed by his client; and dismissing O.S.No.771 of 2006 filed by the CPI. 16. In response to the afore submissions of Shri. K. Sasikumar, Shri. V. Rajendran, learned counsel for the CPI, commenced his arguments by showing me that even the pleadings on record are unequivocally to the effect that both the land and the building are in the name of his client. He submitted that the evidence led by the parties would further render it without doubt that all the members of the appellant – Union were originally members of a Trade Union affiliated to the CPI and that they had purchased the land and constructed the building, while they were so continuing, with the express intent of acquiring the same in the name of the CPI. He says that 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 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 specific case of the appellant – Union that their members had contributed for the purchase of the land and construction of the building, but they concede, in the same breath, that they came into being much after all these. To make it worse, none of the documents on record would show who the members of the appellant – Union are and this is vitally important because, unless they are able to establish that all or at least substantial among the persons who had contributed to the purchase of the land and construction of the building are their members, they cannot seek a declaration - be that under the Benami Prohibition Act or otherwise - that they should be deemed to be the owners of the same. 21. It is absolutely without comprehension as to how the appellant – Union has been able to maintain the suit without even the basic information being made available, as to who their members are and how they assert that all the persons who contributed to the purchase of the land and construction of the building are their members. 21. It is absolutely without comprehension as to how the appellant – Union has been able to maintain the suit without even the basic information being made available, as to who their members are and how they assert that all the persons who contributed to the purchase of the land and construction of the building are their members. This is certainly crucial because, even if this Court is to find in favour of the plea set up by the appellant – Union, it can only mean that the land and building belong to the persons who contributed or subscribed to the cost but not to the Union itself. At the best, the appellant – Union could have sought title over the land or building only if they were able to show that every subscriber and every contributor had agreed to the declaration of title in their favour expressly. 22. In the absence of any such input being available from any person who contributed or subscribed to the cost of the land and the building, it is obvious that the plea set up by the appellant – Union could not have been accepted by the Trial Court at all. 23. That said, even though the Trial 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. 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 context, Ext.A2 cash book shows various amounts stated to have been collected by certain individuals in the year 1993-1994; however, this book contains a docket showing the name of the appellant – Union, which limpidly can only mean that they took possession of the same after they were formed in the year 2004. The persons mentioned in the said cash book have not been identified nor is there anything to show that they are members of the appellant – Union. No different is the case of the receipt books, namely Exts.A4 to A25, wherein again various persons and institutions have shown to 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. 28. Irrefutably, 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. 29. 29. Interestingly, as I have 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 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 the CPI. 34. Obviously, therefore, the plea of the CPI to seek recovery of the property becomes manifestly justified, particularly since this Court has already found that the case of the appellant – Union, based on title, can never inure to them. 34. Obviously, therefore, the plea of the CPI to seek recovery of the property becomes manifestly justified, particularly since this Court has already found that the case of the appellant – Union, based on title, can never inure to them. In the afore circumstances, I dismiss both these appeals confirming the judgment and decree of the Trial Court; however, without making any order as to costs and thus directing the parties to suffer their respective costs.