SALIM AHMAD KHAN Vs. XIITH A D J

JUDGEMENT

(1.) This writ petition has been filed by the tenant against whom release application (P.A. Case No. 41 of 1984 on the file of Prescribed Authority/Additional Civil Judge-I, Agra) filed by landlord/ respondent No. 3 under Section 21 of U. P. Act No. 13 of 1972, is pending. Before filing written statement/reply to the release application tenant/ petitioner filed application numbered as 24-Ga. In the said application tenant stated that house in dispute initially belonged to Sri Rahim Baksha whose entire family migrated to Pakistan in 1948-49 and obtained the citizenship of Pakistan. Only Rahim Baksha remained in India and died in the year 1952 and that after the death of Rahim Baksha, his father continued to receive rent from the tenant till 1967 and that in 1967 father of Rahim Baksha intimated the tenant that he had purchased the house in dispute on 28.11.1962 from the legal representative of Rahim Baksha. It was further stated that the sale deed was sham as it was not executed by legal representative of Rahim Baksha and that after the death of Rahim Baksha his property, i.e., the house in dispute vested in Union of India as it became enemy property. It was also stated in the said application that Tehsildar wrote a letter to him to deposit the rent in the name of Union of India. In the application it was pleaded that in view of Section 9 of Enemy Property Act, 1968 U.P. Act No. 13 of 1972 was not applicable to the house in dispute and custodian enemy property was necessary party. The prescribed authority by order dated 30.1.1986 rejected the application of the tenant/petitioner against which he filed appeal being Misc. Appeal No. 27 of 1986. The appeal has been dismissed by XIIth Additional District Judge, Agra, by judgment and order dated 20.9.1988. This writ petition is directed against the aforesaid judgment and order.

(2.) Learned counsel for the petitioner has cited two authorities of the Calcutta High Court in AIR 1982 Cal 542 and AIR 1989 Cal 139. As far as the authority of 1982 is concerned, it was reversed partly in 1984 (1) Cal LJ 359. As far as 1989 authority is concerned it has been held in para 23 thereof that unless it is decided that a particular property is an enemy property and it vested in the custodian, the custodian of the enemy property cannot take over the possession. Para 23 is quoted below :

(3.) In the instant case, there is no evidence that the property was ever declared to be enemy property or that it ever vested in custodian, enemy property. If one party asserts that the property is enemy property and the other party disputes the said fact, then naturally it must be decided by some authority under Enemy Property Act, 1968, that the property vested in custodian, enemy property. The only thing brought on record by tenant/petitioner was a notice and a report of the Tehsildar dated 27.6.1983. In that notice Tehsildar stated that Rahim Baksha was a Pakistani National. Neither under Enemy Property Act nor under any other provision of law, Tehsildar is authorised to decide the nationality of a person and the fact that a particular property belongs to that person. In the notice Tehsildar did not mention that any authority under Enemy Property Act had declared the said facts. Annexure-2 is report by Naib Tehsildar to Tehsildar dated 18.4.1984. If Tehsildar has no authority to determine the said fact, the Naib Tehsildar can also not determine the same.