CAV JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 28-02-2024 Re: I.A. No. 01 of 2019 The present Interlocutory Application has been filed for substitution of heirs and legal representatives of Appellant No. 1 who died on 26.05.2019.

2. Having gone through the Interlocutory Application, we allow the same. Registry to carry out the substitution.

Re: LPA No. 919 of 2015

3. The appeal is filed against the judgment dated

24.09.2014 rejecting the prayer for quashing Annexure-16 order dated 18.06.2010 passed under Sections 5 and 24 of the Enemy Property Act, 1968, in so far as it relates to the original 1st petitioner; father of the appellants, claiming title over a property. The subject property on which the deceased first petitioner claimed title, was taken over by the Custodian of Enemy Property for India by the said order. The property was comprised in Plot Nos. 71, 71/342, 72/342, 139 and 148 situated in Chapra Lodi @ Maripur village.

4. Learned Senior Counsel for the appellants Shri Shashi Shekhar Dwivedi argued that the learned Single Judge laboured under a misapprehension that the title suit filed by the deceased first petitioner got rejected and failed to notice that in appeal, there was a compromise entered into where the rival claimant had accepted the title deed of the deceased first petitioner to be genuine and valid. The deceased first petitioner is asserted to have purchased the property on 14.07.1964 from one Md. Sharif Punjabi, who had migrated to Pakistan. The notification under the Defense of India Act, 1962, which for the first time spoke of vesting of property belonging to Pakistani nationals in the Custodian of Enemy Property for India came into effect only on 10.09.1965, after the sale deed. There was sufficient evidence to indicate that Md. Sharif Punjabi had returned to India and presented himself before the Registrar for registering the document executed by him; which was validated by the compromise entered into between the deceased first petitioner and the rival claimant before the Additional District Judge, in an appeal filed against the decree and judgment in the suit for specific performance, filed by the rival claimant.

5. Notification of 10.09.1965 was under the Defense of India Act, 1962 and the Defense of India Rules, 1962 which stood revoked on 10.07.1968. Though the Enemy Property Act, 1968 came into effect with retrospective effect on 10.09.1965, the vesting could occur only by the notification, which was after the sale deed. By the time the notification vesting the property had come into effect, the sale had fructified and the property was conveyed by the Pakistani national to the deceased first petitioner, an Indian national. When the notification came into existence, the property was in the possession of the Indian national, argues learned Senior Counsel.

6. Learned Additional Solicitor General Dr. K.N.

Singh, assisted by Shri Prem Ranjan Raj resisted the contention raised on behalf of the appellants. It is submitted that there is absolutely no evidence led before the authority regarding the sale deed executed. In fact, two suits were filed, one by the deceased first petitioner, for eviction of the rival claimant and the other by the rival claimant, for specific performance. The deceased first petitioner’s suit for eviction was rejected and the rival claimant’s suit for specific performance was decreed; against which judgments, two appeals were preferred by the deceased first petitioner. The appeal from the dismissal of the suit of the deceased first petitioner was withdrawn, thus validating the decree, which in fact found that the sale deed was a fraudulently executed one. The compromise entered into in the appeal from the decree of specific performance is inconsequential in so far as the proceedings under the Enemy Property Act, which is the successor to the Defense of India Act.

7. We have gone through the records and especially Annexure-16 order, which puts the facts in the proper perspective