Abdul Rauf v. Janab Abu Mohammad — 1977 DIGILAW 248 (CAL)

JUDGMENT 1. THIS appeal is by the defendant No. 2 and it arises out of a suit instituted by the plaintiff-respondent no. 1 for certain declarations and also for a permanent Injunction restraining the defendant No. 2 as well as the defendant No. 1 from realising the rent from the sub-tenants in the disputed premises. The plaintiff's case is as follows: 2. ONE Fatehuddin is a monthly tenant under the defendant No. 1 in respect of premises No. 69, 71 and 73. Madan Mohan Burman Street, Calcutta, at a monthly rental of Rs. 475k the original rent was Rs. 375/- per month which was subsequently enhanced to Rs. 475/- per month. The defendant No. 2 used to collect rent from the sub-tenants of the said premises who were inducted by Fatehuddin and the defendant No. 2 used to pay the rent due to the defendant No. 1, the superior landlord. The defendant no. 2 used to pay rent to the defendant no. 1 on account of Fatehuddin under the authority of and as the constituted attorney of Fatehuddin. It was alleged that the defendant Nos. 1 and 2 entered into a conspiracy and in collusion with one another, the defendant No. 1 granted a lease for five years in respect of the entire premises in suit in favour of the defendant No. 2 although the tenancy of Fatehuddin was continuing thereafter, defendant No. 2 issued notices to the sub-tenants of Fatehuddin asking them to pay rent to him as he had become their landlord by virtue of the lease. In the last week of the month of August, 1969, the plaintiff received intimation from the tenants of Fatehuddin that the defendant No 2 demanded rent from them as their landlord. The plaintiff approached the defendant Nos. 1 and 2 and asked the defendant No. 1 not to grant any tenancy to the defendant No. 2 but his request went in vain. The plaintiff demanded accounts from the defendant no. 2 in respect of the rents and profits which he had collected on behalf of fatehuddin and also asked him to refrain from collecting rents from the sub-tenants of Fatehuddin but the defendant No. 2 paid no heed to the plaintiff's request. The plaintiff thereafter asked the sub-tenants in the suit premises not to pay any rent to the defendant No. 2 which infuriated the defendant No. 2. The plaintiff thereafter asked the sub-tenants in the suit premises not to pay any rent to the defendant No. 2 which infuriated the defendant No. 2. who came to the suit premises on the 8th September 1969 with several persons and attacked the plaintiff's brother Mr. Munsif and forcibly took away some important documents and papers relating to the suit premises. It was further alleged that on or about 18th September, 1969, the plaintiff came to know that the defendant No. 1 executed a lease of the entire suit premises in favour of the defendant No. 2 for five years in July, 1967 at an enhanced rent of Rs. 350/- per month. On coming to know all this the plaintiff requested the defendant No. 1 to issue rent receipts in the name of Fatehuddin and to cancel the lease which was illegally created by the defendant No. 1 in favour of defendant No. 2 and also asked the defendant No. 2 not to realise the rent from the sub-tenants. The defendant No. 2 did not accede to the plaintiff's request and the plaintiff, thereafter, instituted the suit for the reliefs mentioned in the plaint. The suit was contested by the defendant Nos. 1 and 2 who filed separate written statements. The defense of the defendant No. 1 was as follows: - Fatehuddin was a monthly tenant in respect of the suit premises and at the time of termination of his tenancy in 1969 rent was payable at the rate of rs. 500/- per month. Sometime in 1946, Fatehuddin left India and went to pakistan and since then he had been living in Pakistan and he never came back to India. During this long absence of Fatehuddin, the defendant No. 2, as his local agent, had all along acted on his behalf and paid rent to the defendant no. 1 as the superior landlord after collecting rent from the subtenants. During this entire period, the plaintiff never informed the defendant no. 1 that he was the constituted Attorney of Fatehuddin. The defendant no. 1 denied that the plaintiff was the constituted Attorney of Fatehuddin. It was alleged that the lease for five years in respect of the suit premises was granted in favour of the defendant no. 2 as a temporary measure on a clear understanding that the defendant no. 1 that he was the constituted Attorney of Fatehuddin. The defendant no. 1 denied that the plaintiff was the constituted Attorney of Fatehuddin. It was alleged that the lease for five years in respect of the suit premises was granted in favour of the defendant no. 2 as a temporary measure on a clear understanding that the defendant no. 2 would not claim any tenancy right in case Fatehuddin comes back to india and claims his tenancy right in respect of the suit premises. The defendant no. 1 alleged that the plaintiff was only a sub-tenant in respect of the suit premises. It was further alleged that as a counter-blast to the claim of the defendant No. 2 as landlord of the plaintiff and the suit was filed on false and frivolous allegations. 3. THE defence of the defendant no. 2 is as follows : the suit was not maintainable at the instance of the plaintiff alleging himself to be the constituted attorney of Fatehuddin. It was alleged that Fatehuddin was a pakistan national and he had lost all his civil rights in India by virtue of the enemy Property Act, 1968. It was further alleged that the purported power of attorney is inadmissible in any Court in India as it was executed in Pakistan and it was hit by Section 24 of the notaries Act, 1952 read with Section 3 of the Reciprocity Act, 1943 and the rules analogous thereto such as Section 44a of the Code of civil Procedure. In or about 1945, fatehuddin transferred his tenancy right in the suit promises to the defendant No. 2 for a consideration of Rs. 2,000/- which was paid to him by the defendant No. 2 on the stipulation that Fatehuddin would get the name of the defendant No. 2 mutated in the sharista of the landlord, that is, the defendant no. 1. It was agreed between fatehuddin and the defendant No. 2 that so long as the mutation was not effected the defendant No. 2 would realise rent from the tenants of the said premises to whom the said Fatehuddin introduced the defendant No. 2, and that the defendant no. 2 would pay rent due to the defendant No. 1. 1. It was agreed between fatehuddin and the defendant No. 2 that so long as the mutation was not effected the defendant No. 2 would realise rent from the tenants of the said premises to whom the said Fatehuddin introduced the defendant No. 2, and that the defendant no. 2 would pay rent due to the defendant No. 1. Fatehuddin left calcutta for his native place in the Punjab which is new included within the territory of pakistan and he did not come back thereafter to get the name of the defendant No. 2 mutated in the sharista of the defendant No. 1, as was agreed upon. Pursuant to such agreement, the defendant No. 2 continued to realise rent from the sub-tenants of the said Fatehuddin and he was paying rent due to the defendant No. 1. It was alleged that during this long period a large number of sub-tenants left the premises and the defendant no. 2 inducted new sub-tenants in their place and he was realising rents from them all through. Fatehuddin abandoned all his connections and interests in India on partition of the country as a result of which the name of the defendant no. 2 could not be mutated in the sharista of the defendant No. 1. In these circumstances, it was alleged that Fatehuddin was merely a name-lender and the defendant no. 2 was actually the tenant under the defendant No, 1. The plaintiff is a tenant in respect of one room in the suit premises under the defendant no. 2. He regularly paid his rent to the defendant No. 2 till august, 1965. Taking undue advantage of the fact that rent receipts were issued to him by the defendant No. 2 on the printed receipt forms bearing the name of fatehuddin, the plaintiff stopped payment of rent from September, 1965. The allegation made in the plaint that the lease executed by the defendant No. 1 in favour of the defendant No. 2 is a fraudulent document was denied and it was asserted that the lease is a bonafide and genuine document. 4. THREE issues were originally framed in the suit and subsequently an additional issue was framed. The issue are as follows: "1. Is the deed of lease executed by the defendant No. 1 in favour of the defendant No 2 fraudulent or collusive, void, illegal and inoperative as alleged by the plaintiff ? 4. THREE issues were originally framed in the suit and subsequently an additional issue was framed. The issue are as follows: "1. Is the deed of lease executed by the defendant No. 1 in favour of the defendant No 2 fraudulent or collusive, void, illegal and inoperative as alleged by the plaintiff ? 2. Is Fatehuddin entitled to permanent Injunction against the defendant No. 2 restraining him from realising rent from the sub tenants of the suit premises? 3. To what relief, if any, is fatehuddin entitled ? 4. Additional issue: Is the suit maintainable ?" On the question of maintainability of the suit, the trial court held that Fatehuddin could not be regarded as an alien enemy and accordingly Section 83 of the Code of Civil Procedure was no bar to the maintainability of the suit. The trial court further held that the power of attorney was duly attested and proved by the plaintiff and accordingly it was admissible in evidence. The trial court, therefore, held that the suit was maintainable by the plaintiff as the constituted attorney of fatehuddin. Regarding the other three issues in the suit, which were taken up together for consideration, the trial court found that Fatehuddin had not surrendered his tenancy and as his tenancy was continuing, the lease executed by the defendant no. 1 in favour of the defendant No. 2 could not affect the tenancy right of fatehuddin. The trial court took the view that the lease was not fraudulent but it could not affect the tenancy right of Fatehuddin. The trial court accordingly decreed the suit with regard to the declarations and the Injunction prayed for. 5. AGAINST the said decision of the trial court, the defendant No. 2 has preferred this appeal. The stand taken by the Defendant No. 1 in this appeal is that he has justified the lease executed by him in favour of the defendant no. 2. He has tried to make out a case that as Fatehuddin left for Pakistan without making proper arrangement for payment of rent to the defendant no, 1 and as he did not come back to india for about 25 years and as the subtenants taking advantage of the said fact were refusing to pay rent to the agent of Fatehuddin, he entered into a temporary arrangement with the defendant no. 2 to secure the payment of Tent due to him by the defendant no. 2. He has supported the defendant no. 2 who is the appellant before us. 6. IN support of his case the plaintiff examined three witnesses including himself and produced a number of documents, of which only Exts. 1, 3, 4 and 5 find place in the paper book. Apart from these documents no other document exhibited on behalf of the plaintiff was placed before us at the hearing. Ext. 1 is the certified copy of the special power of attorney said to have been executed by Fatehuddin in favour of the plaintiff. The learned judge in the trial court has observed that Exts. 4 and 5 show that the plaintiff brought a suit as the constituted attorney of Fatehuddin Ext. 4 is the certified copy of the extracts from the order sheet in Ejectment Suit No. 2183 of 1959 before the 3rd Bench, City civil Court, Calcutta. Ext. 5 is the certified copy of the judgment of this court in FA. Nos. 801 and 802 of 1961. The present appellant was not a party to the proceeding relating to Exts. 4 and 5. Therefore, any finding regarding the genuineness or validity of the power of attorney made in those proceedings is not binding upon the appellant. Even assuming that Ext. 1, the power of attorney, is a valid document, it has to be seen how far the present suit is maintainable on the strength of the said power of attorney. The power of attorney is dated 19th August, 1960. It was executed at a place called chakwal in the district of Jhelum in west Punjab. The defence case is that Fatehuddin left India in 1945 and went over to West Punjab which subsequently became the territory of Pakistan. The plaintiff's case on the other hand is that although Fatehuddin left for his native place in the Punjab in or about 1947, he came back to India in the year 1960. The plaintiff who examined him self as P. W. I stated in his evidence that since Fatehuddin left for Pakistan he did not send any money in respect of rent collected from the tenants but the defendant No. 2 used to keep cash and he used to send money to Fatehuddin. The plaintiff who examined him self as P. W. I stated in his evidence that since Fatehuddin left for Pakistan he did not send any money in respect of rent collected from the tenants but the defendant No. 2 used to keep cash and he used to send money to Fatehuddin. He has stated that he used to have correspondence with Fatehuddin and he received a number of letters from Fatehuddin. But he admitted that he has not filed any of those letters. He has also admitted that he never used to sign any rent receipt issued by him on behalf of Fatehuddin. He has of course defied the suggestion that Fatehuddin left for Pakistan in 1945. But his own witness PW. 2 admitted in cross examination that Fatehuddin left for Pakistan in 1945 and since then he has never come back to Calcutta. P. W. 3 Ahmed hossain who is a sub-tenant in the disputed premises has stated that the plaintiff has been granting rent receipt after the institution of the suit but he has admitted that the defendant No. 2 occasionally used to collect rent from him. Regarding the date of his knowledge about the lease executed by the defendant No. 1 in favour of the defendant no. 2 the evidence of the plaintiff is at variance with the statements made by him in his plaint. In paragraph 6 of the plaint the plaintiff has stated that he came to know about the lease on the 18th September 1969. But in his evidence he has stated that he came to know of the lease in the 1st week of August, 1969. The case made out in evidence is that the plaintiff came to know about the lease on the 18th September, 1969 after making search in the registration office. The plaintiff was constrained to admit that he has not filed any paper to show that he has made such any search in the registration office. Another very curious feature in this case is that although the plaintiff came to hold a power of attorney from Fatehuddin he admitted in his evidence that after the power of attorney was received by him he did not realise any rent from the subtenants. The power of attorney, Ext. Another very curious feature in this case is that although the plaintiff came to hold a power of attorney from Fatehuddin he admitted in his evidence that after the power of attorney was received by him he did not realise any rent from the subtenants. The power of attorney, Ext. 1, empowers the plaintiff to do various things on behalf of fatehuddin, but curiously enough it is completely silent abort realisation of rent from the sub-tenants in premises Nos. 69, 71 and 73, Madan mohan Burman Street It is the evidence of the plaintiff that after the institution of the present suit he has been realising rent from the subtenants. It is to be noted in this connection that simultaneously with the present suit the plaintiff obtained an injunction restraining the defendant no. 2 from realising rent from the subtenants of Fatehuddin. That order was made on the 4th October, 1969 i. e. the day of which the suit was filed. The evidence of P. W. 2 and P. W. 3 is contradictory. P. W. 2 has stated that after Fatehuddin left in 1945 he never came back from Pakistan to Calcutta. But P. W. 3 says that he saw Fatehuddin in Calcutta in 1960. The plaintiff has tried to make out a case that the rent used to be realised sometimes by Fatehuddin's sons. Defendant No. 2 who was examined as D. W. 1 has however categorically stated that Fatehuddin had no sons. He has also stated that Fatehuddin left India in 1945 and thereafter he did not come back again. The defence case further is that at the time when Fatehuddin left he took a loan of Rs. 2000/- from defendant No. 2 and agreed to have the tenancy transferred in favour of the defendant No. 2. But as Fatehuddin never came back this arrangement could not be given effect to. Having regard to the entire evidence adduced in the case we have no hesitation in accepting the defence version of the case that Fatehuddin left india for his native place in West Punjab in 1945 which subsequently became a part of Pakistan, and that he never came back to India thereafter. We are also of the view that after Fatehuddin left as aforesaid the defendant no. We are also of the view that after Fatehuddin left as aforesaid the defendant no. 2 had been realising rent from the sub-tenants of Fatehuddin until the present suit was filed wherein by virtue of an order of injunction the defendant No. 2 was restrained from realising rent. 7. OUR finding that Fatehuddin left India for good and started residing in a territory which subsequently became a part of Pakistan brings us to the consideration of the question whether the present suit is maintainable at the instance of the plaintiff. The plaintiff has instituted the suit as the constituted attorney on behalf of Fatehuddin. Fatehuddin having left India in 1945 and not having returned for long 25 years, the inference naturally is that he left India for good with the intention of residing at his native place in Pakistan. There is no evidence in this case as to whether Fatehuddin was born in the territory which formed part of the Union of India when the partition of the country took place. It cannot, therefore, be said that Fatehuddin had his domicile in the territory of india at the commencement of the constitution. In Central Bank of India vs. Ram Narayan, A. I. R. 1955 S. C. 36, it has been pointed out that where a person and his ancestors lived in the district of Multan and had considerable business there and had no home in india his domicile of origin must be held to be in the district of Multan and when the district of Multan fell by the partition in Pakistan, he had to be assigned Pakistan domicile. The power of attorney, Ext. 1, shows that Fatehuddin is a resident of the district of jhelum in West Punjab. On the commencement of the Constitution Fatehuddin therefore had pakistan domicile. He cannot, therefore, be regarded as a citizen of India. From the date of partition of British India Fatehuddin has been living in a place which fell within the territory of Pakistan. He is, therefore, a citizen of Pakistan. Rule 133a, Part XIV of the Defence of India rules, 1962, defines the expression "enemy" for the purposes of that part, inter alia, as 'any individual resident in enemy territory. ' Rule 133v of the said Rules is as follows: - "133 V. Collection of debts of enemy firm and custody of property. He is, therefore, a citizen of Pakistan. Rule 133a, Part XIV of the Defence of India rules, 1962, defines the expression "enemy" for the purposes of that part, inter alia, as 'any individual resident in enemy territory. ' Rule 133v of the said Rules is as follows: - "133 V. Collection of debts of enemy firm and custody of property. (1) With a view to preventing the payment of moneys to an enemy firm, and preserving enemy property the Central Government may appoint a Custodian of Enemy property for India and one or more deputy Custodians and Assistant custodians of Enemy Property for such local areas as may be prescribed and may by order- (a. . . (b) vest, or provide for and regulate the vesting, in the prescribed custodian such enemy property as may be prescribed ; (c. . . (d) confer and impose on the custodian and on any other person such rights, powers, duties and liabilities as may be prescribed as respects- (i) property which has been or is required to be, vested in a custodian by or under the order, 8. THE Government of India in exercise of the powers conferred by sub-rule (i) of the aforesaid rule issued a notification in the Ministry of Commerce, being Notification No. 12/2/65 E. PTY. dated 10th September, 1965. The said notification is as follows :- "in exercise of the powers conferred by sub-rule (i) of Rule 133 v of the Defence of India Rules, 1962, the Central Government hereby orders that all immovable property in India belonging to or held by or managed on behalf of Pakistan nationals, shall vest in the custodian of Enemy Property for india with immediate effect. 2. Nothing in this notification shall apply to any such property, belonging to or held by or managed on behalf of such of the Pakistan Nationals as are employed in the different Missions of the Government of Pakistan in India. " By virtue of this notification, therefore, the disputed property i. e., the leasehold interest of Fatehuddin had vested in the Custodian of Enemy Property. Section 8 of the Enemy Property Act, 1968 (Act 34 of 1968) empowers a Custodian of enemy Property to take various measures in respect of property vested in him including the right to institute or continue any suit or other legal proceeding. Section 8 of the Enemy Property Act, 1968 (Act 34 of 1968) empowers a Custodian of enemy Property to take various measures in respect of property vested in him including the right to institute or continue any suit or other legal proceeding. In this case, therefore, the right to file a suit is in the Custodian and the plaintiff cannot institute a suit as the constituted attorney of Fatehuddin. In Jiauddin Vs. Abdul Majid and others. A. I. R. 1972 delhi 251, the Delhi High Court has pointed out that when it is brought to the notice of the court that the property sought to be attached has vested in the Custodian of Enemy Property it is the duty of the court to institute an enquiry and find out whether the property has vested in the Custodian or not, because Section 9 of the Enemy property Act exempts such property from attachment, seizure and sale in execution of a decree of a court. We accordingly hold that the present suit is not maintainable at the instance of the plaintiff. 9. THERE are also other reasons for which the suit as framed must be held as not maintainable. In the plains as it was originally filed prayer (c)was for cancellation of the Deed of lease granted by the defendant No. 1 in favour of the defendant No. 2. By a petition for amendment of the plaint which was allowed by the court the plaintiff amended prayer (c) of the plaint and prayed for "a declaration that the deed of lease dated 11th July, 1969 executed by and between the defendant no. 1 and 2 has not affected the right of Mr. Fatehuddin as tenant under the Defendant No. 1 and the same is illegal". Unless the prayer to cancellation of the document was there, the court could not have made such a declaration in favour of the plaintiff as was prayed for. The plaintiff however did not pray for recovery of possession although according to his own case the defendant No. 2 was realising rent from the sub-tenants. The plaintiff, therefore, admitted, that the defendant no. 2 was in constructive possession and he has disposed the plaintiff. Therefore, without a prayer for recovery of possession the suit for bare declaration was not maintainable. 10. FOR the reasons mentioned above, this appeal succeeds and it is accordingly allowed. The plaintiff, therefore, admitted, that the defendant no. 2 was in constructive possession and he has disposed the plaintiff. Therefore, without a prayer for recovery of possession the suit for bare declaration was not maintainable. 10. FOR the reasons mentioned above, this appeal succeeds and it is accordingly allowed. The judgment and decree of the Trial Court are set aside and the suit is dismissed with costs. Appeal allowed.