JUDGMENT :

Ravindra Maithani, J.

The challenge in this petition is made to the order dated 04.12.2007 passed by the respondent no. 4/Custodian, Enemy Property for India (“CEPI”). By this order, the CEPI required the District Magistrate, Udham Singh Nagar under Section 8 of the Enemy Property Act, 1968 (“the EP Act”) to take into possession, manage, preserve a part of property mentioned therein and consequential orders.

FACTS

The Petitioners

2. The petitioners’ case is as follows:-

(i) The petitioners are Bhumidhar Tenure Holders of about 10 acre land situated in Village Darau, Tehsil Kichha, District Udham Singh Nagar being Plot Nos. 1052 Min, 1152, 1157, 1111, 1112, 1113, 1114, 1119, 1120 Ka, 1121, 1122, 1123, 1124, 1153, 1154, 1155, 1156, 1166 and 1241 (“the disputed property”). The father of the petitioners late Sri Abdul Wahid Khan along with his two brothers was in cultivatory possession of the disputed property. A case No. 50/90-91, under Section 9-A (2) of the Uttarakhand Consolidation of Holdings Act, 1953 (“the CH Act”) (“the case”) was initiated and vide order dated 26.06.1991, the Consolidation Officer, Khatima, Camp Kichha rejected the objection of the State that the disputed property is an evacuee property and further directions were issued that the disputed property may be entered in the name of the father of the petitioners along with his brothers.

(ii) The order dated 26.06.2021 passed in the case was challenged in appeal under Section 11 of the CH Act before the Settlement Officer, who allowed the appeal on 20.05.1993 and set aside the order dated 26.06.1991 passed in the case.

(iii) The father of the petitioners moved a revision under Section 48 of the CH Act, which was registered as Revision No. 52/59 of 1992-93, Abdul Wahid Khan vs. Habib Yar Khan and others (“the revision”). It was allowed on 15.12.1993 and the order of the Settlement Officer dated 26.06.1991 passed in the case was upheld.

(iv) A writ petition i.e. Civil Writ Petition No. 2326 of 1994, Sahadat Yar Khan v. Deputy Director of Consolidation, Nainital and others, was preferred by Sahadat Yaar Khan, son of Sri Abdul Sayeed Khan against the father of the petitioners, in the High Court of Judicature at Allahabad, in which on 17.01.1994, status quo order was passed. This writ petition, after transfer to this Court was registered as Writ Petition (M/S) No. 815 of 2001 (“the first petition”). The first petition was pending, when the present writ petition was filed.

(v) The father of the petitioners died on 16.01.1994. Thereafter, the names of the petitioners being sons, legal heirs and successors of late Sri Abdul Wahid Khan were mutated in the revenue records. The petitioners are in continuous cultivation and in possession of the disputed property.

(vi) On 04.12.2007, by the impugned order, the respondent no. 4 directed the District Magistrate, Udham Singh Nagar to take control of the dispute property.

3. It is the case of the petitioners that they were legal heirs of the deceased Abdul Wahid Khan. The State had objected in a proceeding under the CH Act that the disputed property is an evacuee property; initially on 26.06.1991, the claim of the father of the petitioners was upheld and the State’s objection with regard to evacuee property has been rejected and that order has attained finality; it was not disturbed when the petition was filed; therefore, the order taking into custody of the disputed property is bad in the eyes of law, which deserves to be set aside.

THE RESPONDENT NOS. 1, 2, 3 & 5

4. Respondent nos. 1, 2, 3 & 5 filed their counter affidavit. It has been the consistent claim of respondent nos. 1, 2, 3 & 5 that the disputed property was recorded in the name of Abdul Sayeed Khan, Abdul Wahid Khan and Abdul Sadiq Khan, out of which 1/3rd share of it was owned by Abdul Sayeed Khan; during the period of division of India and Pakistan, Adbul Sayeed Khan left India and settled in Pakistan; his 1/3rd share in the disputed property was declared as evacuee