P L D 1969 Dacca 427 (PLP)

SIDDIKY, C. J.‑The petitioner obtained this Rule nisi for a declaration that the order of the Assistant Custodian of Enemy Property allotting a godown in Serajganj as enemy property to one Talukder Golam Azam to have been made without lawful authority and to be of no legal effect. Pending hearing of the Rule the petitioner also prayed for an order of injunction upon the respondents from disturbing his possession of the godown. The case of the petitioner is that the godown which is sought to be taken over by the Assistant Custodian of Enemy Property at Serajganj is not an enemy property. The godown belongs to the petitioner himself who is Pakistani and has been carrying on jute business therein under the name and style of Manik Chand Sarda since 1964. The respondent No. 4, the Assistant Custodian of Enemy Property, Pabna, appeared and filed an affidavit‑in‑opposition contesting the claim and assertions of the petitioner. According to the respondents, the jute godown belongs to one Janaki Debi, wife of Hari Kishan Sarda. It was further contended by the respondent that the premises in question which belongs to Janaki Debi Ras being utilised until 1963‑64 as jute godown by the firm of 'Hanuman‑mull Mangilal' one of the partners of the said firm was Janaki Debi and in 1963‑64 Gopal Sarda, son of Janaki Debi, the owner of the Jute godown, was carrying on jute business in the said premises. Gopal Sarda, son of Janaki Debi, Janaki Debi herself and her other children and husband bad gone away to India where they have been living since 1965 and it is alleged by the respondents that in 1964‑65 session the petitioner Manik Chand Sarda obtained jute licence for his jute business and has been carrying on his trade from the said premises after showing Janaki Debt and one Mohan Lai Sarma, to be the owners of the said premises. It is therefore, contended by the respondents that now to avoid the vesting of the enemy property in the Custodian the petitioner has taken up the unsustainable plea of the premises to belong to him. It is found from the document of purchase of the premises as produced before us by Mr. Bhattacharjee that the premises in question was purchased, by Janaki Dshi and one Mohan Lai Sarma jointly. From the notice issued by the Assistant Custodian of Enemy Property it is found that the column showing the name of the owner of the property is filled with the . name of Janaki Debi and Mohan Lai as the owners of the property. There is no denying the fact that property stands in the name of Janaki Debi and Mohan Lai Sarma. There is no challenge to the assertion of the respondents that both Janaki Debi and Mohan Lai Sarma are alien enemies and are now residing in India. It is also not controverted by the learned Advocate for the petitioner that Janaki Debi and her husband and children including Sree Gopal are in India. The petitioner has not made any claim of occupying the property either as a tenant of Janaki Debi and Mohan Lai Sarma or by virtue of agreement to purchase the same in part performance of the said contract from Janaki Debi and Mohan Lal Sarma. The learned Advocate for the petitioner contended that the petitioner is the owner of the premises in question which he has purchased in the benami of Janaki Debt and Mohan Lai Sarma and since his purchase he has been using it as his own. Had it been the case that the petitioner was ,occupying the premises as the tenant of Janaki Debi or by virtue of any agreement to purchase the same from the real owners it could be said that he is not an unauthorised occupier of the same. But when the petitioner claims the ownership of the property on the allegation of it having been purchased by him in the benami of Janaki Debi and Mohan Lal Sarma, it is difficult without ascertaining as to whether be is the real owner of the property or not, to say whether his possession is legal or unauthorised. It is found that the property is question was recorded throughout in the name of Janaki Debi until 1965 and from 1965 the records have been changed in the name of the petitioner. The respondents contend that this changing of the records in respect of the property in the name of the petitioner from that of Janaki Debi has been done by the petitioner fraudulently as an attempt to create his title in the property in the absence of Janaki Debi after her departure to India. This is also a question which needs investigation. We cannot, sitting in writ jurisdiction under Article 98 of the Constitution, decide the question of benami nature of the property. The case of petitioner, in our opinion, is solely dependent upon the fact whether the property belongs to him. This is more so when he does not claim possession of it either as a tenant or as a prospective purchaser if he can succeed in establishing the fact of his being owner of the property then he can possibly avoid vesting of property in the custodian or any other action the custodian might choose to take. To do so, he needs the intervention of the Civil Court, because the question of title cannot be settled in the writ jurisdiction in this Court. This is, therefore in our opinion, a case which is full of controversial facts of complicated nature which need proper adjudication in a civil Court and as such this application' of the petitioner under Article 98 of the Constitution is not sustainable. The petitioner has not also made out a case on merits for our interference with the impugned order. The Rule accordingly is discharged but without any order as to costs. Before we part with this case we would like to observe that in this case instead of giving original copies of the document or authenticated copies thereof as required under the rules, photostat copies of the documents have been appended which are in violation of the rules, and are also not readable without the aid of magnifying glass. If in application under Article 98 of the Constitution authenticated copies of the documents as required by the rules are not annexed and photostat copies thereof are annexed, we do not think that the application should be entertained. ABDUL HAKIM, J.‑I agree. A.S. Rule discharged.