CUSTODIAN OF EVACUEE PROPERTY PUNJAB & ORS. versus JAFRAN BEGUM

CUSTODIAN OF EVACUEE PROPERTY PUNJAB & ORS. v .

.JAFRAN BEGUM

April 20, 1967

[K. N. WANCHOO, C.J., V. BHARGAVA AND G. K. MITTER, JJ.)

Administration of Evacuee Property Act (31 of 1950), s. 4~Deci-sion by Custodian that property was evacuee property~uit in Civil Court challenging decision-If maintainable.

person who was in possession of house in India, migrated to Pakistan. Notice was issued to his son under s. 7 of the Administra• tion of Evacuee Property Act, 1950, and after hearing him the Deputy Custodian declared the house to be evacuee property. The respondent, who was the wife of the evacuee and on whom the notice under s. 7 of the Act was not served, started proceedings before the OJstodian, claim-ing that the owner of the house had executed will bequeathing the pro-perty to her and so the property could not be declared evacuee property. When she failed before the authorities constituted under the Act, she filed suit in the civil court basing her case on the will and prayed for permanent injunction restraining the authorities under the Act from evicting her from the house.

On the question whether the suit in the civil court was maintainable, the High Court held that the question whether certain person had or had not become an evacuee was determinable only by the authorities under the Act, but the determination of complicated question of law relating to title by such ·authorities, if such question . arose, was not final and could be reopened in the civil court; that the suit in the present case did raise such question and therefore, the civil court bad jurisdic-tion to entertain it.

In appeal to this Court,

HELD : Two questions will arise in every case where the authoritv has to declare under s. 7 of the Act whether property is evacuee prO-perty, namely, (i) ·whether particular person has or has not become an evacuee, and (ii) whether the property in dispute belongs to him. There is nothing in the section which shows that the authority under the Act (being quasi judicial authority) cannot enter into all questions, whether of fact or law, simple or complicated, in deciding whether certain pro-perty belon~s to an evacuee; nor does his jurisdiction depend upon correct finding on collateral fact. The power to decide all these ques-tions could not be denied on the ground that . the authority under s. 7 may not be an experienced judicial officer, because, his decision is not final and is open to appeal under s. 24 and to revision under s. 27 by authorities who are experienced judicial officers. Havin$ thus provided complete machinery for adjudication of all claims with respect to evacuee property, under ss. 7, 24 and 27, the Act, by s. 28, gives finality to the order of the authorities mentioned therein and lays down that such orders shall not be called in question in any court by way of appeal or revision or in any ·original suit, application or executio!' ~r~e~ing. The Legislature has gone further and expressly bai:ed the 1un~d1ction of the civil and revenue courts under s. 46 to entert.ain or ad1ud1cate upon imy question whether any property or any right to or interest in any J>roperty is or is not evacuee property. Further, s. 4(1) of the Act provides that

the Act overrides other laws and would thus override s. 9 of the Civil Procedure Code. Jn these circumstances, . s. 46 is ~ compl~te _bar to the jurisdiction of the Civil Court to entertain the. smt or a~1ud1cate u~n the question whether the property in dispute or nght to or mterest. th!'r~m is or is not evacuee property. But ""· 28 and 46 cannot bar the 1unsd1c-tion of the High Court under Art. 226 for, that is power conferred by the Constitution. [740 G-H; 742 A, E, F-G; 743 A-B, D:-G, 744 A, B-Fl

S. M. Zaki v. The State of Bihar, A.l.R. 1953 Pat. 112 and Khalil' Ahmad Khan v. Malka Meher Nigar Begum, A.I.R. All. 362, approved.

Observation at page 934 in Namazi v. Deputy Custodian Evacuee Property, A.I.R. 1951 Mad. 930, disapproved.

[The question whether the civil courts have jurisdiction to ~ami.ne· ·into cases where the provisions of the Ac.t have not _been .comphed with. or the statutory tribunal has not acted m confonn1ty with the funda-mental principles of judicial procedure, not decided.] [745 D-E]

Abdul Majid Haji Mohmed v. P. R. Nayak, A.I.R. 1950 Born. 440, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 772 of 1964.

Appeal by special leave from the judgment and order dated May 28, 1962 of the Punjab High Court in Regular Second Appeal No. 1819 of 1959.

K. S. Chawla and R. N. Sachthey, for the appe)lants.

The respondent did not appear.

The Judgment of the Court was delivered by

Wanchoo, C.J. In this appeal by special leave the only ques-tion that arises is the interpretation of s. 46 of the Adminis-tration of Evacuee Property Act, No. 31 of 1950, (hereinafter referred to as the Act) . Brief facts necessary in that connection are these. The house in dispute is situate in Malerkotla and be-longed to one Muradbux who died sometime in 1922. In 194 7, the house was in possession of Muradbux's son, Mohd. Rafiq and Muradbux's widow, Jafran Begum. Sometime after partition, Mohd. Rafiq migrated to Pakistan. Thereafter notice was issued under s. 7 of the Act to Dildar son of Mohd. Rafiq to show cause why the house be not declared as evacuee property. No notice was however issued to respondent Jafran Begum. It seems that Dildar appeared before the Deputy Custodian and admitted that' his father had migrated to Pakistan. So on June 7, 1952, the house was declared to be evacuee property. No appeal was taken against this order which thus became final. However, on March 2, 1954, the respondent filed an application before the Custodian claiming that by virtue of will made in her favour by Muradbux in 1918 he had bequeathed the house to her and therefore she was the owner of the entire property. ·On July 3, 1954, the Custodian

held that under Mohammedan law person could not will away more than one-third of his property and as it had not been proved that the house willed away by Muradbux was one-third of his entire property or less, the will could not be acted upon. In consequence lhe application was dismissed. It seems that thereafter the res• pondent made some representations to the then Goven:iment of PEPSU but it is not known what happened thereto. On Septem· .ber 10, 1956, the respondent applied for review of the order of the Custodian dated July 3, 1954. That review application wag dismissed on April 5, 1957 mainly on the ground that it was belat-ed. The respondent then went in_ revision to the Deputy Custo· dian General but her revision was dismissed on September 27. 1957. Thereafter on December 3, 1958, the Deputy Custodian ·General suo motu reviewed the order of September 27, 1957 holding that the respondent as the widow was entitled to one-eighth share under Mohammedan law. He therefore held that only seven-·eighths share of the house became evacuee property and one-eighth share of the respondent was not evacuee property.

In the meantime, the suit out of which the present appeal has .arisen was filed by the respondent on March 3, 1958. She based her case on the will of Muradbux already referred to and prayed for permanent injunction against the Custodian Evacuee Pro-perty Punjab and others barring them from evicting her from the house in dispute. The suit was dismissed on December 31, 1958 by the trial court holding that the civil court had no jurisdic-tion to decide the matter in the face of s. 46 of the Act. The :trial court decided the other issues also but we are not concerned with them as in the present appeal only the question of jurisdic-tion of civil courts to entertain the suit has been raised.The respondent then went in appeal to the Additional District .Judge. The Additional District Judge held relying on certain decisions of the Punjab High Court that civil courts had no jurisdic-tion to entertain suit of this nature and therefore dismissed the appeal. He also decided other points but we are not concerned with them.

The respondent then went in second appeal to the High Court. The learned Single Judge who first heard the appeal referred it for decision to larger Bench. The matter then went before Division Bench which noticed that there was some conflict bet-ween certain decisions of the Punjab High Court and therefore referred the matter to larger Bench. In consequence Bench -of three Judges was constituted to decide whether civil courts ~ad jurisdiction in such case. The learned Judges were of the view that when question arose whether any property was or was not evacuee property, two matters had to be decided namely-(i) -whether the particular person had or had not become evacuee and

(ii) whether the property in dispute belonged to him. On the first question they were of ~e view ~a~ the matter coul~ only be determined by the Custodian and ClVll courts had nothmg to do with it. On the second question they_ were of the view that it might involve simple question of fact or complicated ques· tion of law i.e. question of title. They finally decided that the question whether certain person was or was not evacuee was determinable by the Custodian, but. the determination of the Cus-todian on question of title if such, question arose was not final and the question of title could be reopened in the civil court and was to be finally determined by such court. They limited the above decision by observing that mere assertion of claim to any property did not raise question of title for such assertion might rest on simple allegation of fact which could be finally deter-mined by ·the Cqstodian and that the question whether in parti-cular case question of title did or did not properly arise had to be decided on the faots of each case and no general rule about it could be usefully laid down. On this view of the law they held that in the particular case before them complicated question of law arose and therefore the suit was competent and the civil courts had jurisdiction to entertain it. Thereupon the appellant obtained special leave from this Court and that is how the matter has come before us.

There have been large number of cases in the Punjab High Court on this question. We do not however propose to go into them in detail, for it appears to us that the view taken in some of them conflicts with the view taken in others. That is the reason why Bench of three Judges was constituted to go into the·matter and we have already set out their decision. These cases are : F. Sahib Dayal v. Assistant Custodian of Evacuee Property([1]); Firm Pariteshah Sadashiv v. Assistant Custodian Evacuee Pro-F perty('); Duni Chand v. Ibrahim('); Kai/ash Chand v. Addi. Cus-todian General('); Narendra Kumar v. Custodian General("); C!istodJan General v. Harnam Singh("); Ram Gopal v. Banta Smgh( ); Parkash Chand v. Custodian Evacuee Property([8]); Gurf!Dr~had, v. Asst. Custodian Genera/([9]); and Custodian G~neral ~· R1kh1 .Ram('[0]). Some of these cases arose on writ petitions filed in the o_f the Hi.gh HiJl~ Court. distinction must be made between jurisdiction Court under Art. 226 of the Constitution and jurisdic-ti?n of CIVIi courts about entertaining civil suits in matters of this kmd. Whatever may be the interpretation of s. 46 to which we shall address ourselves presently, the jurisdiction of the High Court under Art. 226 of the Constitution is not and cannot be

(I) (19S2) S4 Punj. L.R. 318,

(2) (19S2) S4 Punj. L. R. 468.

(3) (19s.\) S6 Punj, L.R. 2S7.

(4) (1955) 57 Punj. L.R. 440.

(5) A.l.R. 1956 Punj. 163.

(6} A.l.R. 1957 Punj, 58.

(7) (1958) 60 Punj L.R. 307,

(8) (1958) 60 Punj. L.R. 592.

(9) (19'9} 61 Punj. L.R. 137.

(l"l (1959) 61 Punj. L.R. 91S.

affected thereby. Other cases arose out of suits and two views seem to have prevailed in the High Court, one holding that suits of this nature were barred while the other view was that where question of title arose, jurisdiction· of civil courts was not barred under s. 46 of the Act.

It is necessary to consider the scheme of the Act before we actually decide the question posed before us. As is well known the. Act had to be passed in order to deal with the enormous pro-blem which arose on the division of the Punjab and large scale niigration that took place from one side of the Punjab as it was before 194 7 to the other side. Large numbers of Muslims mig-rated to that part of the ·Punjab which is now in Pakistan leaving their properties in that part of the Punjab which is now in India. It was to deal with this problem that the Act was passed, though we may· add that there were earlier laws dealing with the same matter, which were all ·repealed by the Act, wherever it was ex-tended. The Act defines "an evacuee" and also "evacuee pro-perty". "Evacuee property" is defined as meaning any property of an evacuee whether held by him as owner or as trustee or as beneficiary or as tenant or in any other capacity. The defini-tion also includes certain properties and excludes e¢rtain other pro-perties, but we are not concerned with that. Section 4 of the Act which is important provides that "the provisions of this Act and of the rules and orders made thereunder shall have· effect notwith-standing anything inconsistent therewith contained in any other law for the time being in force or in" any instrument having 1 [effect by virtue of any such law". Sections 5 and 6 ]provide for appointment of Custodian-General, Deputy Custodian-General, and Assistant Custodian-General, Custodian, Addi-tional Custodian, Deputy Custodian and Assistant custodian whose duty it is to administer the Act. Section. 7 empowers the Custo-dian to give notice, where. he is of opinion tbat certain property is evacuee property, to the person interested and after holding such inquity into the matter as the circumstances of the. case per-mit, pass an order declaring any such property to be evacuee pro-perty. It is clear in view of the definition of "evacuee property" to which we have already referred, that two questions will arise in every case where the Custodian has to declare wh~ther pro-perty is evacuee property. These two questions are : ( i) w~ethcr particular person has or has not become an evacuee and .( 11) whe-ther the property in dispute belongs to him. Both these questions have to be decided under s. 7 of the Act by the Custodian. Under s. 8 any property declared to be evacuee property under s. 7 vests in the Custodian from certain dates with which we are not concern-ed. Section 9 gives power to the Custodian to take possession of evacuee property vested in him. Section 10 provides for powers and duties of the Custodian generally. Then follow certain sec-

tions which gi:ve special powers to the Custodian with respect to the management of the property to which it is unnecessary to refer. Section 16 provides for restoration of evacuee property by the Central Government. Section 24 inter a/ia gives right to person aggrieved by an order made under s. 7 by the Custodian to appeal. Section 27 gives power of revision to the Custodian-8 General either on his own motion or orr application made to him to call for the record of any proceeding in order to satisfy him-self as to the legality or propriety of any order passed therein and to p!ISs such order in relation thereto as he thinks fit. Sec-tion 28 which is also important reads thus : "Save as otherwise expressly provided in this Chap-c ter every order made by the Custodian-General, Custo-dian, Additional Custodian, Authorised Deputy Custo-dian, Deputy Custodian or Assistant Custodian shall be final and shall not be called in question in any court by way of appeal ·or revision or in any original suit, applica-tion or execution proceeding."

Section 28 thus clearly bars the jurisdiction of any court to enter-tain an ,original suit with respect to an order passed by the autho-rities mentioned therein.

Section 46 with which we are particularly concerned is in these terms : "Save as otherwise expressly provided in this Act, no civil or revenue court shall have jurisdiction-

(a) to entertain or adjudicate upon any question whether any property or any right to or interest in any property is or is not evacuee property; or

( c) to question the legality of. any action taken by the Custodian-Genera! or the Custodian under this Act; or

( d) in respect of any matter which the Custodian

General or the Custodian is empowered by or under this A~t to determine."

bare reading of s. 46 shows how widely it is worded and how clearly it bars the jurisdiction of civil and revenue courts in ml!tters specified therein. perusal of these provisions in our opinion shows that the Act is complete code in itself in the ml)tter. of dealing with evacuee property. As observed by this Court Ill Ram Gopa/ Reddy v. Additionttl Custodian('), "the ~ct thus provides eomplete machinery for person interested m any property to put forward his claims before the authorities .com~tent to deal .. with the. question and to go in appeal and (I} [1966] 3 S.C.R. ZJ4.in revision if the person interested feels aggrieved. Having pro-vided this complete machinery for adjudication of all claims with respect to evacuee property, the Act, by s. 46, bars the jurisdiction of civil or revenue courts to entertain or adjudicate upon any question whether any property or any right to or inte-rest in any propenty is or is not evacuee property". It is true that the Act is concerned with the administration of evacuee pro-perty and large number of its provisions deal with actual ad-ministration of such property. But before the authorities under the· Act take on: the duties of administration of evacuee property some one has to detennine what properties are evacuee proper-ties of which the authorities provided under the Act can take over administration. The Act itself provides machinery for deter-mining what properties are evacuee properties. Section 7 is that provision which gives power to the Custodian to determine what properties are evacuee properties. The Custodian determines that .after notice to persons interested and after such enquiry as the circums•ances of the case pennit. It is thereafter that the Cus-todian declares certain propertY to be evacuee property and on such declarat:J.on the property vests in the Custodian under s. 8. Then we have the provision of appeal under s. 24 and revision under s. 27 of the Act so that any person aggrieved by the order of the Custodian has two forums open to him to ventilate his grievance. Clearly the Custodian under s. 7 acts as quasi-judicial authority and so does the authority hearing appeals under s. 24 and the Custodian-General hearing revisions under s. 27. Thus all persons interested get hearing under s. 7 and all per-sons aggrieved have right of appeal under s. 24 and can go in revision. under s. 27. That is why s. 28 provides that every order made by the authorities indicated therein shall be final and shall not to be called in question in any court by way of appeal, revision or in any original suit, application or execution proceeding. The legislature was not however satisfied merely by giving finality to the orders of the authorities mentioned ins. 28; it went on to bar specifically the jurisdiciion of civil and revenue courts in three matters indicated in s. 46. Under cl. (a) of s. 46, jurisdiction of civil and revenue courts is expressly barred and they are for-bidden to entertain or adjudicate upon any question ·whether any property or any right to or interest in any property is or is not evacuee property.

Under s. 7 the Custodian has to detem1ine whether certain property is or is not evacuee property. To determine that he is to pnd out whether a: particular person is or is not an ev~cuee. Having found that, he is to find whether the property in dispute belongs to that person. If he comes to the conclusion that the property belongs to that person, he declares the property to be evacuee property. Now there is nothing in s. 7 which shows that

the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to 11n evacuoo. Ihere is no reason to hold that under s. 7 the Custodian cannot dccidi: what are called complicated questions of law or question~ of title. It is difficult to see how the Custodian c.an avoid decid-ing question of title if it is raised before him in p1'0ceedings 8 under s. 7. Nor do we find it possible to make distinction bet-ween questions of fact and questions of law that may arise befor~ the Custodian under s. 7. If he has the power to decide ques· tions of fact. which the learned Judges in the order under appeal ,ccm to concede, we do not see why he should not have the power of deciding questions of law also. Further if the learned J Ltdges in the order under appeal arc correct in saying tha.t if question of title rests on simple allegation of fact it can be finally determined by the Custodian, we cannot sec on what reusoning, it can be said that where question of title depend\ on question of law it cannot be finally decided under s. 7 by the Custodian. His power under s. 7 is to decide whether certain property is evacuee property or not and there is nothinp; in s. 7 which restricts that power to deciding only questions of fact .. There c•in in our opinion be no escape from the conclusion that under s. 7 when deciding whether certain property is evacuee property or not. the Custodian has to decide all questions, whe-ther of fact or law, whether simple or complicated, which aris~ therein. That power cannot be denied on the ground that the Custlldian, which term for these purposes includes the Dcput~ Custodian or the Assi~tant Custodian may not be an experienced .iudicial oftkcr and therefore may not be in position to decide questions of title. His decision is not final and is open to. appeal under s. 24 and to revision under s. 27. lf he makes mistake the two higher authorities who, we arc told, have always been recruited from experienced judicial officers can correct him. lt r is after the matter has been decided under s. 7 and s. 24 if an appeal is filed and under s. 27 if revisilln is filed, that s. ?.~ gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in an~ court by way of appeal or revision Ol' in any original suit, applica-tion or execution proceeding. As we have already said, the legislature was not satisfied by merely conferrini: finality on such orders; it went further and expressly barred the jurisdiction of civil and revenue courts under s. 46 to entertain or adjudicate upon any question whether an~ property or any right to or interest in any property is or is no( evacuee property. These words arc very wide and clear and bar t.hc courts from entertaining or a~judicating upon any such que'-tron. Where therefore the qucstton whether certain propcrtic' ;ire evacuee properties has been decided under s. 7, etc. whcthe; that decision is based on issues of fact or issue~ of law, th~ jurisdic-vi Sllp. CJ.'67 . 4

tion of courts is clearly barred under s. 46 (a). It is difficult to sec how distinction can be drawn between decisions under s. 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by s. 28 and s. 46 bars the jurisdiction of civil and revenue courts in matters which are decided under s. 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicated.

It may be added that the only question to be decided under s. 7 is whether the property is evacuee property or not and the jurisdiction of the Custodian to decide this question does not depend upon any finding on collateral fact. Therefore there is no scope for the application of that line of cases where it has been held that wt.ere the jurisdiction of tribunal of limited jurisdiction de-pends upon first finding certain state of facts, it cannot give itself 1urisdiction on wrong finding of that state of fact. Here under s. 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does n.ot depend upon any collateral fact being decided as condition precedent to his assuming jurisdiction. In these circumstances, s. 46 is com-plete bar to the jurisdiction of civil or revenue court~ in any matter which can be decided under s. 7. This conclusion is reinforced by the provision contained in s. 4 ( 1) of the Act which provide' that the Act overrides other laws and would thus override s. 9 of the Code of Civil Procedure on combined reading of ss. 4. 28 and 46. But as we have said already, s. 46 or s. 28 cannot bar the jurisdiction of the High Court under Art: 226 of the Constitution, for that is power conferred on the High Court under the Constitution.

It now remains to refer to certain cases of .other courts in this connection. In M. S. Namazi v. Deputy Custodian of E. P.('), the Madras High Court was mainly considering the constitutional validiey of the Act. At p. 934, however, Rajamannar C. J. made t,he following observations :-

"There is however one thing about which I am not quite clear. The Ordinance no doubt declares the order of the Custodian declaring any property to be ev'aciiee property as final. That might be so in one sense, i.e., if any property belongs to person who has been declared to be an evacuee within the meaninr of the definition in the Ordinance, then the Custodian's order would be final. But, does the finality amount to an adjudication on title in case there is any dispute? Take for instance the case. where property is declared to be evacuee property on the assumption that it be-longs to who is an evacuee. Does it mean that some (I) .4.I.R. 1951 Mad. 930.

one else cannot say that the property really does not belong to the evacuee but belongs to himself who is not an evacuee? I am inclined to hold that the order of the Custodian or the notification under s. 7 of the Ordinance is not final, in case of disputed title."

These observations themselves show that the learned Chief Jus-B tice was not finally deciding the matter for the question did not directly arise before him. He does not seem to have considered the matter in the light of s. 4 and s. 46 of the Act. In any case in view of what we have said above these observations can-not be accepted as laying down correct law.

In Abdul Majid Haji Mohmed v. P. R. Nayak,(') the main question for consideration was again the constitutional validity of the Act. That was case which arose on writ petition. As we have already said,. s. 46 cannot bar the jurisdiction of th~ High Court under Art. 226. But during the course of the judg-ment, Chagla C. J. referred to the decision of the Privy Council in The Secretary of State v. Mask & Co.(') and observed that it was well settled that "even if jurisdiction of courts is excluded. civil courts have jurisdiction to exmnine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental prin-ciples of judicial procedure". We do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask & Co.'s case('). Normally jurisdic-tion of civil courts to entertain or adjudicate upon such question relating to evacuee properly would be barred under s. 46; the question whether in some extreme circumstances civil courts may have jurisdiction inspite of s. 46 need not be decided just now. However we may add that in Firm of /l/11ri Subbayya Cheuy v. State of Aml/Jra Pradesh(') this Court observed at p. 763 t\wt the observations in Mask & Co.'s case(') were in some respect> loo widely stated.

The next case to which reference may be made is S. M. 7aki v. The State of Bi/tar('). There the question was whether the property was evacuee and the court held that the Act had pro-vided adequate remedies and that s. 46 must be construed to-mean that the jurisdiction of civil or revenue court was ousted even if the Custodian had wrongly decided that any property was an evacuee property. The distinction between those cases where collateral fact is to be decided before tribunal of limited jurisdiction assumes jurisdiction and those cases where the tribu-JI nal has to decide the whole matter itself was rcfered to and •

(2) A.t.R. 1941 P.C. 105. 14) 1\.l.R. 1953 Pat. 112.

(I) A.l.R. 1951 Bom. 440.

(3) [t9M] I S.C.R. 7.12 .

7 ·I l~

Rumaswam i J. (as he the11 was) l'ightly held that under s. 7 the

whole nrntte1· has to be decided by the Custodian and there was no question of the decision of any collateral fact os condition pr~•cdcnt to assumption of jurisdiction by the Custodian.

The last case to which reference may be made is Kl1a/il Ahmad Khan v. Malka Mehar Nigar Beg11m([1]). The questian there was somewhat different, namely, whether s. 46 bars the jurisdi9tion of the civil court in .pending matter. The majority of 1be Judges in that case observed that in case where matter had been adjudicated· upon in accordance with the provisions of the Act it might not be possible for courts to interfere by reason of the provisions of s. 46 of the Act. This case therefore to some extent is in line with the view we have taken.

On careful consideration therefore of the authorities cited before us, we arc of opinion that generally speaking the juris· diet ion of the civil or revenue court is barred under s. 46 and no such court can entertain any suit or adjudicate upon any ques· tion whether ;1 particular property or right to or interest therein is nr is not evacuee property. We therefore allow the appeal :ind hold that in the view we have taken the suit was not main· t•iinable in the civil court. The matter will now go back to the Single Judge of the High Court to, pass order in confonnity with th~ view we have expressed. As the respondent has not appeared in this Coutt we pass no order as to costs.

Appeal allowed.