JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri M.A. Zaidi, Advocate, for appellants and Sri Subodh Kumar, Advocate, for respondents. 2. This appeal under Section 100 C.P.C. having been filed by plaintiff-appellants was admitted on 27th April, 1979 treating ground No. 1 as substantial question of law, which reads as under: “Whether suit of the claimant-appellant was barred by Section 49 of the U.P. Consolidation of Holdings Act?” 3. During the course of argument, I find that there are two more substantial questions of law which also need be answered in this case: 2. Whether the finding recorded by Lower Appellate Court that Buddhu migrated to Pakistan before 1947 and, therefore, his property became evacuee property under the Notification dated 10.9.1965, under Defence of India Act, 1962 (hereinafter referred to as “Act, 1962”) and Defence of India Rules, 1962 (hereinafter referred to as “Rules, 1962”) is based on any evidence? 3. Whether the Lower Appellate Court in reversing the findings of facts of the Trial Court has based its findings on any evidence at all? 4. The facts in brief, giving rise to the present dispute, are that plaintiffs instituted Original Suit No. 597 of 1973 for a declaration that the order dated 2.5.1973 passed by Assistant Custodian, Enemy Property, Muzaffar Nagar is illegal and without jurisdiction. They also sought a permanent injunction restraining the defendants from interfering in possession of the plaintiffs over disputed property, as described at the foot of the plaint. 5. The plaintiff Ghasitu (since deceased and substituted by his legal heirs), Umardraz and Samai Raj (since deceased and substituted by legal heirs), all are brothers, being sons of Tota, and, plaintiffs 4 and 5, Tofa and Shama (both died and substituted by their legal heirs) are brothers being sons of Allah Razi. They are all residents of village Kalyanpur, Pergana Shikarpur, District Muzaffar Nagar. They claimed to be co-sharer in the property in dispute with Buddhu. It is said that Buddhu absconded sometimes in 1939 and as reliably learnt to have died in 1940. His property therefore was succeeded by plaintiffs though his name continued in revenue records. However, the plaintiffs continued in possession of the property in dispute. They claimed to be co-sharer in the property in dispute with Buddhu. It is said that Buddhu absconded sometimes in 1939 and as reliably learnt to have died in 1940. His property therefore was succeeded by plaintiffs though his name continued in revenue records. However, the plaintiffs continued in possession of the property in dispute. One Jammu Ram made a complaint to defendant No. 1 that Buddhu had migrated to Pakistan and his property was liable to be declared “enemy property” and consequent thereto, order dated 2.5.1973 was passed by defendant No. 1, declaring, property of Buddhu as enemy property. It was pleaded that order of Custodian, Evacuee Property was illegal. 6. Trial Court formulated eight issues as under: “(1) Whether Buddhu was absconded as alleged by the plaintiffs? (2) Whether the plaintiffs are owners of the share of Buddhu? (3) Whether Buddhu was Pakistani national and his share has vested in Custodian of Enemy Property? (4) Whether the suit is barred by Section 27/49 of U.P.C.H. Act? (5) Whether this Court has no jurisdiction to try this suit? (6) Whether the suit is under valued and Court fee paid is insufficient? (7) Whether the suit is barred by Section 38 and 41 of Specific Relief Act? (8) To what relief, if any?” 7. The issues No. 5 and 6 were adjudicated as preliminary issues and answered in favour of plaintiffs. While considering Issue No. 4, it was held that suit is not barred by Section 27 and 49 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as “Act, 1953”) but issues No. 1, 2 and 3 were adjudicated together. The issues No. 1 and 2 were returned in affirmative and issue No. 3 in negative. The Court held that Buddhu absconded in 1937 and not migrated to Pakistan after 1947 hence his property was inherited by plaintiffs and shall not vest in the Custodian of Enemy Property. While deciding Issue No. 7, Trial Court held that suit is not barred by Section 38 and 41 of Specific Relief Act, 1963 (hereinafter referred to as “Act, 1963”) and in view of its findings in respect to issues No. 1, 2 and 3, it decreed the suit vide judgment and decree dated 30.4.1976. 8. Defendants, however, preferred appeal which was allowed by Sri D.S. Srivastava, Second Additional District Judge, Muzaffar Nagar vide judgment and decree dated 1.6.1978. 8. Defendants, however, preferred appeal which was allowed by Sri D.S. Srivastava, Second Additional District Judge, Muzaffar Nagar vide judgment and decree dated 1.6.1978. Lower Appellate Court (hereinafter referred to as ‘LAC’) held that though Section 49 of Act, 1953 is no bar for adjudication and validity of order dated 2.5.1973, but since the plaintiffs-respondents did not prefer any claim that their names should be recorded in the revenue record during consolidation proceedings, their fresh claim is definitely barred to that extent and, therefore, the respondents cannot claim that they are entitled to inherit share of Buddhu in the disputed land and to this extent adjudication is barred by Section 49 of Act, 1953. Having said so, it further proceeded to hold that this by itself shall not bar adjudication of order dated 2.5.1973 either by resorting to Section 27 or 49 of Act, 1953. LAC then proceeded to consider other factual aspects in the context of issues No. 1, 2 and 3 and held that the circumstances justify to infer that Buddhu had migrated to Pakistan and became enemy on the relevant date. His share in the land, therefore, becomes enemy property and order passed by Assistant Custodian on 2.5.1973 is valid. That is how he allowed appeal and set aside judgment of Trial Court, as a result whereof the suit of the plaintiffs stood dismissed. 9. The LAC basically relied on oral deposition of PW1, PW 2, PW 3, DW 1 and 3 in order to come to otherwise inference than what was held by Trial Court so as to reverse its findings. 10. Having gone through the aforesaid deposition, I find that what has been read by the lower appellate Court in the aforesaid statements is absolutely perverse and a clear misreading thereof. 11. Statement of PW-1, Sher Singh, was recorded on 20.4.1976. He said that whereabouts of Buddhu are not known from about 7 to 8 years prior to creation of Pakistan. Buddhu’s father was Anwar, who were two brothers. Buddhu was about 70 years at the time of absconding. PW-1 also said that whereabouts of Buddhu were not known since 33/36/40 years. At another place, he said that Buddhu was not seen by him for the last 36-37 years. Buddhu’s father was Anwar, who were two brothers. Buddhu was about 70 years at the time of absconding. PW-1 also said that whereabouts of Buddhu were not known since 33/36/40 years. At another place, he said that Buddhu was not seen by him for the last 36-37 years. LAC has read his statement as if he has stated that Buddhu left the village about 40 years before and that is how he has calculated the period of abandonment of village by Buddhu somewhere in 1936-37. Apparently, this finding of LAC is nothing but a sheer misreading of statement of PW-1. The PW-1 did not confine his statement to 40 years but gave more stress to the period about 36 to 37 years. If that is taken to be the reckoning period, then it come to about 1939-1940 and that being so, to suggest that Buddhu could not have executed a will in 1939 per se becomes perverse. 12. Similarly PW-2 Yasin son of Niyamat, whose statement was also recorded on 20.4.1976, said, that whereabouts of Buddhu are not known for the last 36 to 37 years. It again went back to 1938-40. In the cross-examination, PW 2 said that he saw Buddhu last time in 1939-40 and at that time his age was about 75 years. He also proved execution of document of Hibe-Nama by Buddhu in favour of plaintiffs in 1939. The LAC in observing that the statement of PW-2 is contradictory to that of PW-1 has again recorded a totally perverse finding inasmuch from a bare reading of statements of PW-1 and PW-2, I find no such contradiction. A witness, giving statement about some event which has occurred more than three decades ago, cannot be expected to describe the period or time, with scientific accuracy or certainty. There may be some guess work, and, for that, reasonable latitude has to be given to their statements. Reading both the statements of PW-1 and PW-2 together, I do not find any substantial or material inconsistency or contradiction therein so as to render their statements untrustworthy. Rather, on the contrary, PW-2 specifically said that he saw Buddhu last time in 1939-40 and he also proved execution of a document in favour of plaintiff by Buddhu in 1939. He also specifically said that Buddhu never went to Pakistan. 13. Rather, on the contrary, PW-2 specifically said that he saw Buddhu last time in 1939-40 and he also proved execution of a document in favour of plaintiff by Buddhu in 1939. He also specifically said that Buddhu never went to Pakistan. 13. Then comes Statement of PW 3, Deen Mohammad, who said that whereabouts of Buddhu are not known for the last 30-35 years and he has absconded about 10 years prior to creation of Pakistan. He guessed age of Buddhu at the time he saw him last, as about 60 to 70 years. PW-4, Ghasitu, supported the plaint case. 14. DW 1, Sharifan, daughter of Rustam, claims to be wife of Buddhu (though this fact has been seriously contested by plaintiffs) stated that plaintiffs are sons of elder brother of Buddhu. In other words, the plaintiffs are nephews of Buddhu. In her statement, which was recorded on 27.4.1976, she said that Buddhu left for Pakistan about 20 or 21 years back. It brings the period as 1955-56. This was not even the case in the written statement of defendants. She admitted that Nuruddin is her son whose age was about 30 years. Then she admitted that she was married to one Gyani and Nuruddin was born from aforesaid wedlock. Plaintiffs specifically challenged statement of DW-1 that Buddhu was her husband and in the cross-examination DW-1 could not tell anything about her mother-in-law etc. Then at one stage she also could not tell any other details as to how and when she was married to Buddhu. Her statement thus cannot be construed to further defendants’ case. 15. DW-3, Raju, son of Noor Bux, stated that Buddhu left for Pakistan about 25-26 years back. If this time about Buddhu’s leaving for Pakistan is taken to be correct or reliable, it comes to somewhere around 1950-51. Meaning thereby he was an Indian national, when, as claimed by DW-1 and DW-3, he left for Pakistan in 1950-51. This was again a new stand, but in any case, did not support the defendant, hence could not have been countered against plaint case. 16. If the presumption of Buddhu’s death cannot be drawn, the presumption of his having left for Pakistan in 1947 or prior thereto also could not have been drawn. This was again a new stand, but in any case, did not support the defendant, hence could not have been countered against plaint case. 16. If the presumption of Buddhu’s death cannot be drawn, the presumption of his having left for Pakistan in 1947 or prior thereto also could not have been drawn. Defendant No. 1, if claimed that property in dispute became enemy property by virtue of Notification dated 10.9.1965, onus lies upon defendants to prove this fact. In order to attract Notification dated 10.9.1965, it was necessary to show that property in dispute belong to a Pakistani national or held or managed on behalf of Pakistani national and only then it can be said to have vested in the Custodian of Enemy Property with immediate effect. Unless it is shown that Buddhu was or became a Pakistani national, the Notification by itself could not have been said to have attracted. 17. In order to hold a property as “enemy property” it was necessary to first determine whether the person to whom the property belongs is an ‘enemy’. One has to determine whether the property satisfies conditions necessary to qualify to be “enemy property”. In this regard, it would be appropriate to have a bird’s eye view of relevant statutory provisions. 18. Defence of India Act, 1962 (hereinafter referred to as “DIA, 1962”) was enacted to provide for special measures to ensure public safety and interest, the defence of India and civil defence and for trial of certain offences and matters connected therewith after proclamation of emergency under Article 352 (1) of the Constitution by the President of India on 26.10.1962. Section 1 Sub-section (3) provides that the Act shall remain in force during the period of operation of Proclamation of Emergency on 26.10.1962 and for a period of six months thereafter. Section 1 Sub-section (3) provides that the Act shall remain in force during the period of operation of Proclamation of Emergency on 26.10.1962 and for a period of six months thereafter. It further says that expiry of the aforesaid Act shall not affect: “(a) the previous operation of, or anything duly done or suffered under this Act or any rule made thereunder or any order made under any such rule, or (b) any right, privilege or obligation or liability acquired, accrued or incurred under this Act or any rule made thereunder or any order made under any such rule, or © any penalty, forfeiture or punishment incurred in respect of any offence under this Act or any contravention of any rule made under this Act or of any order made under any such rule, or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid,” 19. The term “enemy” is defined under Section 2 © of DIA, 1962 which reads as under: “© “enemy” means- (i) any person or country committing external aggression against India; (ii) any person belonging to a country committing such aggression; (iii) such other country as may be declared by the Central Government to be assisting the country committing such aggression; (iv) any person belonging to such other country;” (emphasis added) 20. The Government of India promulgated Rules, 1962 under DIA, 1962, and Rule 133 (1) (b) thereof reads as under: “With a view to preventing the payment of monies 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;” 21. It is in furtherance of the aforesaid provision that Notification dated 10.9.1965 was enacted which reads as under: “In exercise of the powers conferred by Sub-rule (1) 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 all Pakistani nationals, shall vest in the Custodian of Enemy Property for India with immediate effect. 2. 2. Nothing in this notification shall apply to any such property, belonging to or held by or managed on behalf of such of the Pakistani nationals as are employed in the different Missions of the Government of Pakistan in India,” 22. The terms “enemy” or “enemy subject” and “enemy property” have also been defined in Section 2 (b) (c) of Enemy Property Act, 1968 (hereinafter referred to as “Act, 1968”), which read as under: “(b) “enemy” or “enemy subject” or “enemy firm” means a person or country who or which was an enemy, an enemy subject or an enemy firm, as the case may be, under the Defence of India Act, 1962, and the Defence of India Rules, 1962, or the Defence of India Act, 1971 and the Defence of India Rules, 1971 but does not include a citizen of India; © “enemy property” means any property for the time being belonging to or held or managed on behalf of an enemy, an enemy subject or an enemy firm;” (emphasis added) 23. It is true that in order to attract Notification dated 10.9.1965, no further action or order was required but it could not have been applied unless it is shown that the property in respect whereto, vesting is being claimed by Custodian of Enemy Property, do belong to a Pakistani national or is being held or managed on behalf of a Pakistani National. It, thus, was incumbent upon the defendants to show that Buddhu at any point of time became a Pakistani national or was a Pakistani national. There is not even a whisper in the entire judgment of the LAC to suggest or to refer to any evidence that Buddhu, at any point to time, became or was a Pakistani national. If that be so, there is no presumption of application of Notification dated 10.9.1965, so as to render the property in dispute to be enemy property. 24. The Act, 1968 excludes specifically a citizen of India. Buddhu was in India, and, according to the own statements of DW-1 and DW-3, left India about 20 to 25 years back. The statements having been recorded in 1976, the period of leaving of Buddhu, as alleged, to Pakistan, comes between 1950 to 1955. At that time he was a citizen of India, unless shown otherwise, for which I do not find any evidence, whatsoever. 25. The statements having been recorded in 1976, the period of leaving of Buddhu, as alleged, to Pakistan, comes between 1950 to 1955. At that time he was a citizen of India, unless shown otherwise, for which I do not find any evidence, whatsoever. 25. The LAC appears to have proceeded as if onus lies upon the plaintiff to prove that the property in dispute was not “enemy property” and the mere claim set up by custodian of enemy property was sufficient to treat the disputed property “enemy property”. This approach of LAC is apparently fallacious and erroneous. Probably it is for this erroneous reason, it (LAC) has discussed the matter in a totally faulty manner, committing manifest error of law, rendering its decision illegal and unsustainable. In this view of the matter, I have no hesitation in holding that findings recorded by LAC otherwise, are wholly perverse and illegal. Questions No. 2 and 3 thus are returned in negative i.e, in favour of plaintiff/appellants. 26. Now coming to question No. 1, I am of the view that an application for mutation can be filed at any stage, whether the proceeding under Act, 1953 are complete or not, and there Section 49 of Act, 1953 would have no application. I am fortified in taking this view by Division Bench decisions in Smt. Bhuri v. Sunder and others, 1973 RD 201 and Smt. Amjadi v. Deputy Director of Consolidation, 1963 RD 62. In view of above, question No. 1 is also answered in negative, i.e., in favour of plaintiff-appellants. 27. In view of above, the judgment of LAC cannot sustain. The Appeal is, accordingly, allowed. The Judgment and decree of Lower Appellate Court, dated 1.6.1978 in Civil Appeal No. 171 of 1976 is set aside. The judgment and decree of Trial Court dated 30.4.1976 in Original Suit No. 597 of 1973, is hereby restored, which will have the result of decreeing the suit. 28. The plaintiff-appellants shall be entitled to costs throughout.