SUDHENDU NATH BANERJEE Vs. BHUPATI CHARAN CHAKRABORTY

JUDGEMENT

(1.) This second appeal is by Sudhendu Nath Banerjee, the defendant No. 1 and several others who are the theirs and legal representatives of Snehalata Devi, the original defendant No. 2 who died at the appellate stage. Ehupati Charan Chakraborty, the plaintiff is the respondent. The original suit- was dismissed, but in the appeal before the appellate Court below, the plainttiff was successful and the suit was decreed.

(2.) The plaintiff's case, to be very brief, is that he is the owner of the land and the building as described in the plaint schedule. The original defendants entered into the suit premises with leave and licence of the plaintiff. The plaintiff revoked the licence and asked the defendants to vacate the suit premises, but as the defendants failed to comply with the request, the suit was started for their eviction. The defendant No. 1 Sudhendu Nath, the husband of the defendant No. 2 entered appearance and filed written statement denying the material allegations made in the plaint. His defence case is that the land in suit was purchased with his money and the house in suit was erected by him. It is alleged that the defendant No. 1' has been living in the suit property in his own right and that the plaintiff has no right, title and interest therein. The story of leave and licence is false. By filing an additional written statement, the defendant raised the plea that as the plaintiff was a citizen of East Pakistan, the property in suit as claimed by him, vested in the Custodian of enemy property for India and therefore, the suit was not maintainable. The trial Court decided the issues in favour of the plaintiff except the issue No. 8 which relates to the question of vesting of suit property in the Custodian of enemy property. According to the learned Munsif, as the plaintiff was a Pakistani national, he could not proceed with the suit and the suit was ultimately dismissed. The learned Additional District Judge who heard the appeal below decided on issue No. 8 that the suit was maintainable and he concurred with the trial Court that the suit property belonged to the plaintiff and that the defendants were in permissive occupation of the house. The trial Court's decision was set aside and the suit was decreed.

(3.) Mr. Banerjee, the learned Advocate appearing on behalf of the appellants before me has urged two points of law to challenge the legality of the decision of the first appellate Court below. It has been first contended that in view of the Enemy Property Act, 1968 and connected laws and regulations prior to it as the plaintiff was a Pakistani national when Pakistan was declared an enemy of India, the suit started by him should have been dismissed. Secondly, it has been urged that in view of Section 83 of the Code of Civil Procedure again, the plaintiff's suit should have been dismissed. Mr. Ghosh, the learned Advocate appearing on behalf of the plaintiff-respondent has submitted that the plaintiff's suit cannot be dismissed and the decree passed by the appellate Court below cannot be disturbed as the suit was filed by the plaintiff before he could be described as an alien enemy. It has been further urged that there is no provision in the Enemy Property Act of 1968 or in any connected Enactment or Orders which may suggest that the present suit should be dismissed.