JUDGMENT Hon’ble Dr. B.S. Chauhan, J.—This writ petition has been filed for quashing the letters of opposite party Nos. 1 and 2 (contained in Annexures 1 and 3), and for restraining the respondents to dispossess the petitioners from the house in dispute or demand the rent for the same. 2. The facts giving rise to this writ petition are that originally the property in dispute belonged to one Choudhari Mohd. Rafi who executed a registered sale-deed in favour of the petitioners for a consideration of a sum of Rs. 9,000/- on 15.7.1969 and the said sale-deed was registered on 11.7.1970. The notice issued by the Tehsildar was served upon the petitioners to the effect that as the property in dispute belonged to Choudhari Mohd. Rafi who had gone to Pakistan, it was a property of enemy under the Enemy Property Act, 1968 (hereinafter called the Act). Petitioners were directed to show-cause why they be dispossessed from the premises in dispute as the land vested in the custodian of the enemy properties. The petitioners submitted the reply to the said show-cause. However, they received the letter dated 1.6.1971 issued by the custodian that the property had rightly been treated as an enemy property and, therefore, petitioners had no right to retain the property. Hence the present writ petition. 3. Shri M.A. Qadeer, learned Counsel appearing for the petitioners, has submitted that there is no adjudication upon the issue as to whether the land in dispute was an enemy property and neither the Tehsildar nor the Custodian had the competence to adjudicate upon such issue. The purpose of the Defence of India Rules or the Act had been only for taking the property in custody for the purposes of its management and maintenance and to prevent the enemy having any income from the said property by having any kind of business or trade from it, but the property does not vest in him. Therefore, the custodian of enemy property cannot claim any title over it. Moreso, Choudhari Mohd. Rafi had himself executed the same in favour of the petitioners then without adjudicating the issue as to whether he could be enemy within the provisions of the Act, the order impugned could not be passed. Hence the order and the notice impugned in this regard are liable to be quashed. 4. Moreso, Choudhari Mohd. Rafi had himself executed the same in favour of the petitioners then without adjudicating the issue as to whether he could be enemy within the provisions of the Act, the order impugned could not be passed. Hence the order and the notice impugned in this regard are liable to be quashed. 4. The case remained on board for three consequent days and it had been adjourned for want of appearance of the Counsel on behalf of the Union of India. Even today none turned up. 5. We have considered the submissions made by Shri Qadeer and perused the record. 6. The issue involved herein is no more res integra. The issue has been adjudicated upon by Courts time and again. The Division Bench of this Court in the case of Rameshwar Dayal v. Custodian Enemy Property of India, 1986 (2) ARC 376 considered the scope of sub-rule (1) of Rule 133-V of the Defence of India Rules, 1962 (hereinafter called the Rules, 1962) with Government of India notification dated 10.9.1965 and the Act as amended in 1977 and observed as under : “The Act further empowers the Custodian to deal with the property vested in him in the manner laid down by Sections. We however do no find any provision in the Act or the Defence of India Rules which empower the custodian of enemy properties to, in a case where some one disputes that a particular property to be enemy property adjudicate or to give a determinative finding on the point in controversy. Likewise we do not find any provision in the Act or the rules which empowers the Custodian to take forcible possession of any property which he claims to have vested in him as enemy property. In our opinion whenever such controversy is raised it has to be resolved by raising the issue in appropriate civil proceedings.” 7. The similar view has been reiterated by the Division Bench of this Court in Buniyad Hussain and others v. Zila Adhikari, Barabanki and others, 1998 All CJ 1163. This has consistently been a view taken by this Court as is evident in the judgment of Mohd. The similar view has been reiterated by the Division Bench of this Court in Buniyad Hussain and others v. Zila Adhikari, Barabanki and others, 1998 All CJ 1163. This has consistently been a view taken by this Court as is evident in the judgment of Mohd. Zahir and others v. Union of India and others, 1969 Unreported Decisions 436 wherein this Court has held as under : “The law, as stated above, does not authorise a Custodian or his nominee to take forcible possession of any property which he considers belonging to a Pakistan National even though actually it may not belong to such a person as some one else may claim that property to be his and not of the Pakistan National by virtue of its belonging to who that person wants to take possession over it. The remedy of the Custodian in such circumstances is to proceed in accordance with law. The law vests the property in him and it is his duty to take effective steps for its preservation. If he is resisted in the taking possession of the property which he considers to be the property vesting in him, belonging to a Pakistan National, he cannot resort to force in taking possession over it. He has to proceed in accordance with law such as by filing a suit against the person who claims that it is not such a property which vests in the Custodian, and it is in that suit that it will be decided whether it is such a property which belongs to a Pakistan National and which has vested in the Custodian by virtue of the notification under sub-rule (1) of Rule 133-V of the Defence of India Rules, 1962.” 8. The similar view has been reiterated in Shamim Ahmad v. Smt. Rashida Begum and others, 2001(1) ACJ 862. 9. The Bombay High Court while deciding Special Appeal No. 108 of 1975 in Union of India and another v. Hamida Begum, vide judgment and order dated 19.2.1979, has dealt with the issue at length holding that the Act or the Rules did not contemplate that the ownership of the evacuee could be taken away. The immediate object was to vest the property in the custodian for dealing with the custody, management and administration of the property, thereby it results in a continuous vesting of the property in the custodian. The immediate object was to vest the property in the custodian for dealing with the custody, management and administration of the property, thereby it results in a continuous vesting of the property in the custodian. The property was not to vest in him with rights of ownership. In the said case the alleged enemy Hamida Begum had gone to Pakistan and after coming back from there she claimed the property. The Court held that the Union of India failed to produce any evidence relating to state of war and what occurred in 1965 between the India and Pakistan was merely an armed conflict war. Therefore, such provisions were not even attracted. The claim of the said Hamida Begum was upheld. The Hon’ble Supreme Court dismissed the Civil Appeal No. 4137 of 1986 filed against the said judgment of the Bombay High Court vide judgment and order dated 16.12.1992. 10. Hon’ble Supreme Court in the case of Union of India and another v. Raja Mohd. Amir Mohd. Khan, JT 2005 (9) SC 25, examined a case wherein Raja had gone to Pakistan and never returned. The properties of Raja were taken over by the custodian in exercise of provisions of the Act. His son who has never migrated to Pakistan and remain in India throughout, filed a civil suit for restoration of the properties on the ground that he was an Indian and he remained in India throughout his life and, therefore, he could not be deprived of the possession of the said property and ultimately the matter went up to the Hon’ble Supreme Court. The Court held as under : “23. The object of the Enemy Property Act is to prevent a subject of an enemy estate from carrying on business and trading in the property situated in India. It is, therefore, contemplated that temporary vesting of the property takes place in the custodian so that the property till such time as it is enemy property cannot be issued for such purpose. 29. It is, therefore, contemplated that temporary vesting of the property takes place in the custodian so that the property till such time as it is enemy property cannot be issued for such purpose. 29. Counsel for the appellant laying stress on the provisions of Section 18 contended that only the Central Government can divest the custodian of the enemy property by passing a general or special order directing that any enemy property vested in the custodian under the Act shall be divested from him and be returned in such manner as may be prescribed to the owner thereof or to such other person as may be specified in the direction and only thereupon such property shall cease to vest in the custodian and revest in such owner or such other person. Since in the present case no such order has been passed by the Central Government this Court cannot divest the custodian of the property. We do not agree with this submission. In the present case the respondent filed several representation but the Central Government did not take a decision on them for years together. In such a situation the power of the Court is not taken away to pass appropriate orders in a case where the property which vested in the custodian ceases to be enemy property, the same having vested in a citizen of India by way of succession after the death of the enemy subject.” 11. The Hon’ble Apex Court directed the authorities to hand over the possession of the entire property, which had been taken over by the custodian as the enemy property, to the respondent therein. 12. In view of the above the law can be summarised that there must be state of war for inviting the provisions of the Act when the custodian may take over the property of the enemy in his possession for its management and administration, though the title does not vest in him. The custodian cannot claim the ownership over the said properties. It is a temporary measure and the property does not vest in the custodian forever and if any person dispute the fact that the property is enemy property, the custodian or any other authority does not have a right to dispossess him forcibly. The custodian cannot claim the ownership over the said properties. It is a temporary measure and the property does not vest in the custodian forever and if any person dispute the fact that the property is enemy property, the custodian or any other authority does not have a right to dispossess him forcibly. The only course to take the possession of such property is to resort to legal proceedings for declaration before the Civil Court in this regard. 13. In the instant case, the property was transferred to the petitioners by its owner Choudhari Mohd. Rafi executing a sale-deed which was duly registered in 1970, the sale was for consideration. No opportunity of hearing had ever been given either to the petitioners or the vendor in this case. There has been no adjudication upon the issue by the competent Civil Court as to whether the property could be the enemy property as defined under the Act. We do not find any force in the contention raised by the Union of India in its counter affidavit that by mere application of Rule 133-V of the rules, the property stood vested in the custodian and the same cannot divested unless the Central Government issues an appropriate notification in this respect. There is nothing on record to show that the vendors Choudhari Mohd. Rafi had migrated to Pakistan in 1954 and, therefore, the property become enemy property and the sale-deed in favour of the present petitioners is void. 14. Thus the impugned letters dated 16.2.1970 and 1.6.1971 cannot be sustained in the eye of law. Petition succeeds and is allowed. The order impugned dated 16.2.1970 and 1.6.1971 are hereby quashed. No order as to costs. Petition Allowed. ———