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2016 DIGILAW 8 (TRI)

Union of India v. Chakraborti Tea & Industries

2016-01-12

S.C.DAS

body2016
JUDGMENT : This second appeal has been admitted for hearing on the following substantial questions of law: “(i) Whether the learned first appellate court committed error by holding that the procedure for declaration of enemy property was not disclosed and if, in view of the procedure laid down by the Enemy Property Act, 1968, the same was a perverse finding? (ii) Whether the learned first appellate court committed error by holding that the appellant-respondent failed to establish that one third of the entire property was the enemy property? (iii) Whether in view of Section 95 of the TLR & LR Act, claim with regard to the enemy property cannot be raised before the civil court? (iv) Whether the finding of the learned first appellate court with regard to right, title and interest in respect of 523.40 acres of the land, to the exclusion of an area measuring 69.10 acres there from, in favour of the plaintiff-respondent is perverse?” 2. Heard learned CGC, Mr. A. Lodh for the appellants, learned counsel, Mr. D.K. Biswas for respondent Nos.1, 2 and 3 and learned counsel, Mr. N. Majumder for respondent Nos.4 and 5. 3. Respondent Nos.1, 2 and 3 as plaintiffs (hereinafter mentioned as plaintiffs) instituted Title Suit No.13 of 2000, which was renumbered as Title Suit No.49 of 2006 in the Court of Civil Judge, Sr. Division, North Tripura, Kailashahar against the defendant-appellants and defendant-respondents Nos.4 and 5 (hereinafter mentioned as defendants) seeking declaration of title, confirmation of possession and perpetual injunction, in respect of the suit land described in the schedule of the plaint. 4. Briefly stated the case of the plaintiffs is that Rang Rung Tea Estate located in Kailashahar Sub-Division of North Tripura District was covering an area of 523.40 acres recorded in Khatian Nos.63/1 to 63/74 at Mouja Rang Rung under Srirampur Tehsil and 68.99 acres recorded under Khatian Nos.337/1 to 337/29 at Mouja Chantail under Birchandranagar Tehsil of Kailashahar Sub-Division. The said tea estate was originally owned by three co-owners in equal share, namely Satyendra Lal Kundu, Dr. Rajat Kanti Gupta and Abuzafar Ubedulla. The plaintiffs got the ownership over the entire tea estate described in the schedule of the plaint by purchase from Satyendra Lal Kundu and Dr. Rajat Kanti Gupta in due course and Abuzafar Ubedulla being a citizen of Pakistan was not traceable for more than three decades. Rajat Kanti Gupta and Abuzafar Ubedulla. The plaintiffs got the ownership over the entire tea estate described in the schedule of the plaint by purchase from Satyendra Lal Kundu and Dr. Rajat Kanti Gupta in due course and Abuzafar Ubedulla being a citizen of Pakistan was not traceable for more than three decades. Neither he nor his legal representatives came to Kailashahar to manage the tea estate or receive usufruct from the tea estate. The plaintiffs being the owners of the tea estate developed it spending huge amount and enjoying the usufruct as the only source of their livelihood. The right title if any of Abuzafar Ubedulla has been extinguished since he did neither made claim over his share nor was managing the same for more than three decades. The possession of the plaintiffs in the entire tea estate has not been disturbed by anybody during the prescribed period of limitation and as a result the plaintiffs acquired title by adverse possession over the share of the tea estate belonged to Abuzafar Ubedulla. The District Magistrate & Collector, i.e. the defendant No.4 was authorized by defendant No.2 to take possession of 1/3rd of the tea estate alleging that the share of Abuzafar Ubedulla in the tea estate has been an enemy property and the defendant No.2 by virtue of the Enemy Property Act, 1968 became the custodian of the enemy property and accordingly defendant No.2 issued certificate under Section 12 of the Enemy Property Act, 1968 on 28.02.2000 and authorized the District Magistrate & Collector, Kailashahar to take over 1/3rd portion of the tea estate as enemy property. The plaintiffs by filing a writ petition being WP(C) No.149 of 2000 challenged that action taken by defendant Nos.2 and 4 but that writ petition was disposed of with a direction that the plaintiffs may approach the appropriate civil Court and accordingly the plaintiffs approached the civil Court seeking declaration and permanent injunction. Respondent Nos.1 and 2 and respondent Nos.3 and 4 contested the suit by filing separate written statements. Respondent Nos.1 and 2 and respondent Nos.3 and 4 contested the suit by filing separate written statements. It was inter alia contended by respondent Nos.1 and 2 that Abuzafar Ubedulla was the owner of 1/3rd share of the suit property, i.e. Rang Rung Tea Estate and he became a Pakistan national and so as per the provisions of the Defence of India Act, 1962 and the Defence of India Act, 1971 and the rules framed there under a notification was issued by the Union of India where under all properties of Pakistani nationals vested in the custodian of enemy property under the Enemy Properties Act, 1968 and hence the defendant No.2 issued certificate dated 28.02.2000 authorizing the District Magistrate & Collector, Kailashahar to take over and preserve the enemy property which was belonged to Abuzafar Ubedulla . The trial Court considering the pleadings of the parties framed the following issues: “1. Is there any cause of action to file the suit? 2. Whether the suit is maintainable in its present form and nature? 3. Whether the plaintiff has right title interest over the suit land? 4. Whether the plaintiff is entitled to get decree as prayed for? 5. To what other relief or relief’s the parties are entitled?” Both side adduced oral and documentary evidence before the trial Court and by impugned judgment dated 23.07.2008 the trial Court decided the material issues against the plaintiffs and accordingly dismissed the suit. 5. Aggrieved the plaintiffs preferred Title Appeal No.37 of 2008 before the District Judge, Kailashahar, North Tripura and the learned District Judge by impugned judgment dated 24.06.2010 dismissed the appeal, whereas made certain observation in the concluding paragraph of the judgment in respect of the custody of the enemy property by the defendant-appellants and hence the present appeal is filed by the defendant-appellants challenging such observation of the first appellate Court. 6. It is an admitted position that Rang Rung Tea Estate, i.e. the suit property mentioned in the schedule of the plaint equally belonged to Satyendra Lal Kundu, Dr. Rajat Kanti Gupta and Abuzafar Ubedulla. It is also an admitted rather undisputed fact that the plaintiffs became owners of the shares belonged to Satyendra Lal Kundu and Dr. Rajat Kanti Gupta by transfer. Rajat Kanti Gupta and Abuzafar Ubedulla. It is also an admitted rather undisputed fact that the plaintiffs became owners of the shares belonged to Satyendra Lal Kundu and Dr. Rajat Kanti Gupta by transfer. It is also an admitted rather an undisputed fact that Abuzafar Ubedulla is a Pakistani national and for more than three decades he never came to claim the suit property or to enjoy the usufruct thereof. 7. The plaintiffs’ claim that they are in possession of the suit land, i.e. the tea estate and that they had developed it and was enjoying the usufruct for their livelihood since long and the right title of Abuzafar Ubedulla has been extinguished for not having possession and claiming title over the suit land. 8. The trial Court while deciding issue No.2 discussed the pleadings and evidence on record in details and held that the plaintiffs are not entitled to get a declaration and injunction against the defendants in respect of the share of land belonged to Abuzafar Ubedulla. The Court also held that the plaintiffs failed to establish their claim of adverse possession over the land belonged to Abuzafar Ubedulla and in view of the decision of issue No.2 the trial Court was pleased to dismiss the suit. 9. In the first appeal the learned District Judge did not take any decision issue-wise rather the District Judge formulated two issues before him for decision of the appeal. He has dismissed the appeal whereas made some finding which was contrary to the finding of the trial Court. The District Judge, as it appears, confused himself and while dismissing the appeal was not supposed to make some finding which was contrary to the decision issue-wise taken by the trial Court. The finding of the learned District Judge in para 8 which is virtually challenged by the appellants in this second appeal reads as follows: “8. On examination of all the issues and also from the evidence it is transpired that land of Abu Zafar Obaidullah was declared as enemy property by the custodian of the enemy property. Procedure for declaration of the same not disclosed in the evidence given by the respondents. The criteria for declaring or any declaration not produced by the respondents at all. The Civil Court has no jurisdiction to question the act of the custodian of the enemy property. Procedure for declaration of the same not disclosed in the evidence given by the respondents. The criteria for declaring or any declaration not produced by the respondents at all. The Civil Court has no jurisdiction to question the act of the custodian of the enemy property. But the respondent custodian of the enemy property shall give reasons for its act. The custodian also cannot claim the firm’s property as because Abu Zafar Obaidullah’s right, title, interest over the firm’s property except his land not established by any kind of evidence by the custodian. Plaintiffs-appellants spent a lot of money for development of the industry as stated in their evidence. Custodian of the enemy property cannot claim share of those acts and the Partnership act also do not support such act of respondent. However, the plaintiffs-appellants failed to establish their right, title and interest over the suit land measuring 69.10 acres recorded in the name of enemy Abu Zafar Obaidullah. The proceeding under Section 95 of the TLR & LR Act cannot be challenged in the Civil Court and plaintiffs-appellants are to take recourse of law in another forum. Therefore, the plaintiffs-appellants’ prayer for declaration of title, confirmation of possession and permanent injunction failed. ORDER In view of my above findings this civil appeal failed. Considering the facts and circumstances, parties are directed to bear their own costs. Send back the LC record along with a copy of this Judgment. Supply a copy of this Judgment to the learned GP free of cost. The case is disposed of on contest.” 10. It is an admitted position that Abuzafar Ubedulla was owner of 1/3rd share of Rang Rung Tea Estate, i.e. the suit property. He has become a Pakistani national during the crucial period of declaration of the enemy property. Exbt.A, a copy of the gazette Notification dated 10.09.1965 issued by the Ministry of Commerce, Government of India, in exercise of the power conferred by Sub-Rule 1 of Rule 133-V of the Defence of India Rules, 1962 ordered that all immovable property in India belonging to or held by or managed on behalf of all Pakistan National, shall vest in the Custodian of Enemy Property for India with immediate effect. The words, ‘enemy’ or ‘enemy subject’ or ‘enemy firm’ have been defined in Section 2(b) of the Enemy Property Act, 1968 which read as follows— “2(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(42 of 1971) and the Defence of India Rules, 1971] but does not include a citizen of India;” The words, ‘enemy property’ have been defined in Section 2(c) of the said Act of the 1968 which read as follows— “2(c) “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: Provided that where an individual enemy subject dies in the territories to which this Act extends, any property which immediately before his death, belonged to or was held by him or was managed on his behalf, may, notwithstanding his death, continue to be regarded as enemy property for the purposes of this Act;” Exbt.A, the Notification dated 10.09.1965 was issued under the authority of Defence of India Rules, 1962. The said rule was framed under the provisions of Defence of India Act, 1962. Section 2(c) of the Defence of India Act, 1962 defines the word, ‘enemy’ which reads as follows: “2(c) “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 belong to such other country;” In the Defence of India Act, 1971 also the word, ‘enemy’ has been defined in Section 2(b) which is pari materia to that of the definition of ‘enemy’ given in the Act of 1962. 11. 11. Notification dated 10.09.1965(Exbt.A) was issued in pursuance of the provisions prescribed in Sub-Rule 1 of Rule 133-V of the Defence of India Rules, 1962 which reads 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) require the payment to the prescribed custodian of money which would but for these rules be payable to or for the benefit of an enemy firm; or which would but for the provisions of rule 133-Q and rule 133-T be payable to any other person and upon such payment the said money shall be deemed to be property vested in the prescribed custodian; (b) vest, or provide for and regulate the vesting, in the prescribed custodian such enemy property as may be prescribed; (c) vest in the prescribed custodian the right to transfer such other enemy property as may be prescribed, being enemy property which has not been, and is not required by the order to be, vested in the custodian; (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, (ii) property of which the rights of transfer has been, or is required to be, so vested, (iii) any other enemy property which has not been, and is not required to be, so vested, (iv) money which has been, or is by the order required to be, paid to a custodian; (e) require the payment of the prescribed fees to the custodian in respect of such matters as may be prescribed and regulate the collection of and accounting for such fees; (f) require any person to furnish to the custodian such returns, accounts and other information and to produce such documents, as the custodian considers necessary for the discharge of his functions under the order; and any such order may contain such incidental and supplementary provisions as appear to the Central Government to be necessary or expedient for the purposes of the order.” It is, therefore evident that the property of a Pakistani national in India was declared as enemy property and was vested with the custodian of enemy property. 12. Section 5 of the Enemy Property Act, 1968 prescribes that the property vested in the custodian of enemy property in India under the Defence of India Act, 1962 shall continue to vest in the custodian. The provision contained in Section 5 reads as follows:- “5. Property vested in the Custodian of Enemy Property for India under the Defence of India Rules, 1962 to continue to vest in Custodian— (1) Notwithstanding the expiration of the Defence of India Act, 1962(51 of 1962) and the Defence of India Rules, 1962, all enemy property vested before such expiration in the Custodian of Enemy Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of this Act, shall, as from such commencement, vest in the Custodian. (2) Notwithstanding the expiration of the Defence of India Act, 1971(42 of 1971) and the Defence of India Rules, 1971, all enemy property vested before such expiration in the Custodian of Enemy Property for India appointed under the said Rules and continuing to vest in him immediately before the commencement of the Enemy Property (Amendment) Act, 1977(40 of 1977) shall, as from such commencement, vest in the custodian.” 13. The plaintiffs contended that Abuzafar Ubedulla was one of the co-sharers of the Rang Rung Tea Estate having the ownership of 1/3rd share and it is also clearly stated that said Abuzafar Ubedulla was a citizen of Pakistan and not traceable for more than three decades and neither he nor his legal representatives came over to Kailashahar to manage or to receive the usufruct from the tea garden. The said averment has been made in para 3 of the plaint. The defendants clearly contended that Abuzafar Ubedulla was the owner of 1/3rd shares of the tea estate i.e. the suit property and he became a citizen of Pakistan at the crucial time of the order issued by the Government of India. Exbt. B is a letter dated 28.02.2000 written by the custodian of the enemy property to the DM & Collector, North Tripura, Kailashahar authorizing him under Section 8 of the Enemy Property Act to take over, control and manage the property of Abuzafar Ubedulla and Exbt.C is the certificate issued under Section 12 of the Enemy Property Act. Exbt. B is a letter dated 28.02.2000 written by the custodian of the enemy property to the DM & Collector, North Tripura, Kailashahar authorizing him under Section 8 of the Enemy Property Act to take over, control and manage the property of Abuzafar Ubedulla and Exbt.C is the certificate issued under Section 12 of the Enemy Property Act. Pursuant to those letter and certificate the defendant No.4 acted upon and in exercise of power under Section 95 of the TLR & LR Act rectified the khatian. The trial Court categorically discussed the pleadings and evidence as well as the legal provisions while deciding issue No.2 and has held that the civil Court cannot interfere in the matter while the property of a Pakistani national has been vested with the custodian of enemy property under the provisions of the Enemy Property Act. 14. Abuzafar Ubedulla is a Pakistani national asserted by the plaintiffs in their pleadings as well as the defendants in their pleadings and evidence. While Abuzafar Ubedulla was a Pakistani national at the relevant point of time, in view of the definition of ‘enemy’ quoted hereinbefore, the property of Abuzafar Ubedulla was liable to be vested with the custodian of the enemy property. 15. Section 12 of the Enemy Property Act, 1968 protects action of a custodian of enemy property from any legal proceeding or a suit. The trial Court rightly decided the issue that the plaintiffs were barred to challenge the action of the custodian of the enemy property in the given facts and circumstances and that the plaintiffs would approach the Central Government as per the provisions of Section 18 of the said Act, if they have any interest in the property left by the enemy. Section 19 of the Act has prescribed that no suit, prosecution or other legal proceeding shall lie against the Central Government or the Custodian or an Inspector of Enemy Property for anything which is in good faith done or intended to be done under the Act. 16. Section 19 of the Act has prescribed that no suit, prosecution or other legal proceeding shall lie against the Central Government or the Custodian or an Inspector of Enemy Property for anything which is in good faith done or intended to be done under the Act. 16. While it is an undisputed position that 1/3rd portion of the suit property belonged to Abuzafar Ubedulla who is a Pakistani national, the property is liable to be vested to the custodian of the enemy property as per the provisions contained in the Enemy Property Act, 1968 and while the custodian of the enemy property, i.e. the respondent No.2 directed the District Magistrate & Collector, i.e. respondent No.4 to take over the possession and manage the enemy property and also issued a certificate to that effect, the suit seeking declaration and injunction against the defendant-appellants was clearly not maintainable and was liable to be dismissed. 17. The plaintiffs’ claim that they acquired adverse title in respect of the property belonged to Abuzafar Ubedulla but neither Abuzafar Ubedulla was made a party in the suit nor any pleading or evidence was adduced to show as to from which date their possession became adverse and they acquired title by adverse possession. It is a settled law that the claim of adverse possession is to be used as a shield and not as a sword. The trial Court in para 30 of the judgment has clearly observed that the claim of adverse possession of the plaintiffs was unfounded and therefore such claim was rejected. The first appellate Court, as it appears ignoring the finding of the trial Court arrived at an uncertain finding which is not tenable at all. Though the appeal has been dismissed the observation made in para 8 of the judgment of the appellate Court was uncalled for and so the judgment is liable to be interfered and set aside. 18. Accordingly, the appeal is allowed. The judgment dated 24.06.2010 passed by learned District Judge, North Tripura, Kailashahar in Title Appeal No.37 of 2008 is set aside. The judgment and decree dated 23.07.2008 passed by the learned Civil Judge, Junior Division, Kailashahar in Title Suit No.13 of 2000 which was renumbered as Title Suit No.49 of 2006 is restored and upheld. 19. Parties to bear their own costs. 20. Send back the L.C. records along with a copy of this judgment.