MUMTAZ BEGUM Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is directed against the judgment dated 28/11/1988 passed in C.O. No.6933(W) of 1984. By the aforesaid order, the writ petition by the appellants was dismissed by the learned trial Judge, inter alia, on the ground that such dispute should be better decided in an appropriate suit. The writ petitioners-appellants contended that one Hussain Ara Begum alias Sugan Bibi was owner of various properties at Patna and Premises No.14, 14/1 and 15 Karrum Hussain Doctor Lane at Calcutta. The said property at Calcutta was purchased from the Calcutta Improvement Trust by a Registered Deed of Conveyance and the said premises is now numbered as 36, Circus Avenue. After the death of Hussain Ara Begum the predecessors-in-interest of the writ petitioners-appellants and the respondents Nos.4 to 9 had inherited all the said properties at Patna and in Calcutta. It is the case of the writ petitioner-appellants that some time in October, 1949 after the death of Hussain Ara Begum, one Abu Waser Alauddin Ahmed along with his adopted daughter Alam Ara Begum had trespassed into the Premises No.36, Circus Avenue and they had also managed to get their names recorded in the Municipal record after striking out the name of Hussain Ara Begum. The predecessor-in-interest of the writ petitioners and respondents Nos.4 to 9 filed at misjudicial petition before the learned Additional Subordinate Judge, Patna for declaration of their shares and partition of properties between the co-sharers of the properties at Patna and Calcutta upon declaration that the said Abdu Naser and Alam Ara Begum were trespassers. A decree for mesne profit were also prayed. The said two trespassers were made defendants Nos.1 and 2 in the said suit which was numbered a Title Suit No.12 of 1952 subsequently renumbered as Title Suit No.57 of 1953, on 22/12/1953. The said title suit was decreed with costs and such decree was put into execution, which was numbered as Execution No.16 of 1955. So far as the decree for eviction of the trespassers and recovery of possession was concerned, the execution of such decree was transferred to this Court as it transpired that the properties were outside the original ordinary civil jurisdiction of this Court. This Court therefore sent the execution case back to Patna Court. Thereafter execution proceeding was transferred to 9th Court of the learned subordinate Judge at Alipore which was numbered as Money Execution Case No.13 of 1968. The Execution Court at Alipore issued the writ for delivery of possession under Order 21, Rule 35 of the Code of Civil Procedure and notice was also issued to show cause why money claim should not be executed. It appears that possession of the said premises had been delivered to decree-holder on 27/07/1968 through court and the decree holder was directed to take steps for realising the Money Decree by 4/09/1968. As the decree-holder did not take steps to implement the money decree the execution case was disposed of by noting that the same was disposed of on part satisfaction. The Enemy Property Act was enacted in 1968 by replacing the Enemy Property Ordinance, 1968. The said Enemy Property Act, 1968 was enacted for continuance of the vesting of enemy property under the Custodian of Enemy Property under Defence of Indian Rules, 1962 and for matters connected therewith. It appears that the possession of the property was purported to have been taken by the Custodian of the Enemy Property in terms of notification dated 10/09/1965 because the said Alauddin Ahmed and Alam Ara Begum were Pakistani Nationals and the said properties were recorded in the names of those two persons in the record of the Corporation of Calcutta. It may be noted that one Shahabuddin Ahmed brother of Alauddin Ahmed filed a suit for declaration in the 9th court of the learned Subordinate Judge at Alipore for a declaration that Alauddin Ahmed had made an oral gift to Shahabuddin in respect of the said property namely premises No.36 Circus Avenue. The writ petitioners and/or any of the heirs of Hussain Ara Begum were not impleaded as parties in the said suit and the suit was decreed ex parte. It appears also that the Asstt. Custodian of Enemy Property also instituted a suit being title suit No.14 of 1967 subsequently renumbered Title Suit No.59 of 1969 in the court of the learned Subordinate Judge Alipore against Shahabuddin Ahmed, Alauddin Ahmed and Alam Ara Begum for a declaration that the ex parte decree passed in T.S. No.48 of 1967 was not binding upon the Custodian and the property had already vested in the Custodian of Enemy Property. In the said suit none of the writ petitioners and other heirs of Hussains Begum were impleaded as parties. Such suit was also decreed ex parte. The predecessor-in-interest of the writ petitioners namely Yawar Hussain wrote a letter to the Custodian of Enemy Property at Bombay, inter alia, intimating that the said Hussain Begum and her heirs and successors were all Indian citizens and the property belonged to Hussain Ara Begum and her heirs and successors and the said Alauddin Ahmed and Alamara Begums were trespassers to the said premises No.36, Circus Avenue, Calcutta and in the Title Suit instituted at Patna the said persons were declared trespassers and the title of the predecessor-in-interest of the writ petitioners and other respondents were declared by the competent Civil Court at Patna and the decree for eviction of the said trespassers and for recovery of possession had also been passed. It may be noted that Mr. M. K. R. Chari the Custodian of Enemy Property by his letter dated 1/07/1970 addressed to the said Shri Yawar Hussain inter alia stated that by the decree passed by the Patna Court, title to the property of the said Yawar Hussain and his brother and sisters was declared and one-third share of Yawar Hussain was also declared by the Civil Court at Patna but if the said Yawar Hussain alone would desire to take over possession of the whole property namely 36, Circus Avenue, Calcutta on behalf of the brother and sisters, it would be advisable for him to obtain a power of Attorney from them and if necessary to make an application to the Alipore Court that possession of the entire property should be handed over to him. It is the case of the writ petitioners appellants that even inspite of such admission about the title of the predecessor-in-interest of the writ petitioner respondents, the Asstt. Custodian of Enemy Property of Calcutta took a curious stand and had insisted that since the property was recorded in the names of the said two trespassers in the Municipal register who were Pakistani nationals and possession of the said properties had been taken under the Enemy Property Act on that score and a declaration was also obtained by the Assistant Custodian of Enemy Property that such property had vested as enemy property there was no question of delivering possession to the heirs and legal representatives of Hussain Ara Begum and or Yawar Hussain. As the Asstt. Custodian was not was not at all inclined to hand over the possession of the said property to the writ petitioners and/ or other heirs and co-sharers of the said properties, the writ petition had to be moved before this court for appropriate direction on the custodian of Enemy Property and the Asstt. Custodian of Enemy Property so that they would hand over the possession of the said property to the writ petitioners and other heirs and legal representatives being respondent Nos.4 to 9 in the writ petition. It may be noted here that the Asstt. Custodian of Enemy Property on the basis of the said Act of taking possession of the property had inducted a number of tenants in the said premises and had been realising rents and profits of the premises. A prayer was also made in the writ proceeding for appropriate direction so that the rents and profits of the property realised by the Asstt. Custodian of Enemy Property be also handed over to the writ petitioners and other cosharers of the said property.

(2.) As aforesaid, the learned trial Judge had although noted that the Asstt. Custodian of Enemy Property was not justified in proceeding on the footing that the properties were enemy properties, in the fact and circumstances aforesaid, the learned trial Judge was of the view that the dispute should be resolved in an appropriate civil suit.

(3.) Being aggrieved by the aforesaid judgment of the learned Trial Judge, the instant appeal has been preferred by the writ petitioners.