JUDGMENT :- This appeal arises out of a suit for permanent injunction restraining the first defendant Sri Kabir Hassan Khan from proceeding further with the execution proceedings in the execution case No. 213 of 1954 in respect of plot No. 218 measuring .56 acre and situate in village Kuberpur. 2. It appears from the record that one Sri Sarwar Khan along with some other persons had a one-third share in plot No. 218. They mortgaged their share with Sri Kabir Hasan. On the basis of that mortgage Sri Kabir Hasan obtained a decree in suit No. 253 of 1919 on August 19, 1950. Sri Kabir Hasan applied for the execution of the decree which gave rise to the Execution Case No. 213 of 1954. It appears that he had asked for the sale of the one-third share mortgaged with him. The mortgagors had some cosharers in the said plot. Some of those cosharers had migrated to Pakistan and their interest vested in the Custodian as would appear from the order of the Assistant Custodian, dated July 19, 1955. It also appears from the order that Sri Ghulam Hazoor Khan and Sri Nizam Uddin Khan sons of Sri Ghaus Mohammad Khan resident of Diha were declared evacuees and their property mentioned in the notice was declared to be revacuee property. From the record of his case it further appears that during the pendency of the execution proceedings the present plaintiff Sri Ghulam Nizam Khan instituted a suit along with four others claiming that he was the sirdar of the plot in suit and that the Execution Case No. 213 of 1954 could not proceed against plot No. 218 which he held as a Sirdar. That suit was dismissed, as is clear from the decree dated May 20, 1959. 3. While the said execution case was pending, it appears that, as the said plot was held by persons some of whom were evacuees and the others non evacuees, the matter was referred to the Competent Officer, Agra Zone. Agra, under the provisions of the Evacuee Interest (Separation) Act, 1951. Before the Competent Officer one Sri Mushtaq Ahmad Khan claimed 1/19th share and Sri Gulam Nizam Khan, the plaintiff, claimed one-third share in the said plot. The custodian on behalf of the evacuees claimed one-fourth share. Agra, under the provisions of the Evacuee Interest (Separation) Act, 1951. Before the Competent Officer one Sri Mushtaq Ahmad Khan claimed 1/19th share and Sri Gulam Nizam Khan, the plaintiff, claimed one-third share in the said plot. The custodian on behalf of the evacuees claimed one-fourth share. The Competent Officer gave 1/19th share to Sri Mushtaq Ahmad Khan, 1/3rd share to Sri Ghulam Nizam Khan, and curiously enough the rest 35/57th share to the Custodian. It does not appear from the record that notice under Section 6 of the Evacuee Interest (Separation) Act was issued or the relevant notification had been published. The fact that the aforesaid claimants and the Custodian were together claiming less than the whole plot should have suggested to the Competent Officer that there might be some more interested parties. He did not, however, make an effort to find them out and to give them notice of the proceedings. It is pertinent to notice at this stage that although Sri Ghulam Nizam Khan was aware that Sri Sarwar Khan and others were the cosharers of one-third share in the plot which was sought to be sold in the execution case and was a party to the proceedings, he also did not inform the Competent Officer to that effect. In the result neither Sri Sarwar Khan and others nor their mortgagee Sri Kabir Hasan were given notice of the proceedings by the Competent Officer. 4. It appears from the certificate of sale that after the decision of the Competent Officer the plot was sold for Rs. 325 in favour of Sri Ghulam Nizam Khan, the plaintiff appellant in this case. Having obtained the sale certificate dated September 17, 1957 from the court of the Competent Officer (if at all he can be called a court) the plaintiff appellant Sri Ghulam Nizam Khan wanted to amend the plaint of suit No. 8 of 1957, which he had filed for a declaration of the Sirdari right in the plot to the effect that he had become a Bhumidhar thereof in pursuance of the sale certificate dated September 17, 1957. The amendment was disallowed and ultimately the suit was dismissed as already stated on May 20, 1959. After the dismissal of that suit the present suit (Suit No. 159 of 1959 Sri Ghulam Nizam Khan v. Sri Kabir Hasan and others) was instituted on August 3, 1959. The amendment was disallowed and ultimately the suit was dismissed as already stated on May 20, 1959. After the dismissal of that suit the present suit (Suit No. 159 of 1959 Sri Ghulam Nizam Khan v. Sri Kabir Hasan and others) was instituted on August 3, 1959. I have earlier mentioned the relief claimed in the suit. In the present suit the plaintiff founded his claim on the sale of the plot in his favour by the Competent Officer. 5. Sri Kabir Hasan the first defendant denied the claim of the plaintiff and also challenged the sale certificate in his favour. He asserted that he had no knowledge of any proceeding before the Competent Officer and said that in the previous suit the plaintiff had not asserted the title which he was claiming in the present suit and that the claim of the plaintiff was barred by Section 11 sub-clause (4) of the Civil Procedure Code on account of the decision in suit No. 8 of 1957. He also took some other pleas with which we are not concerned. 6. Three of the issues framed by the learned Munsif on the pleadings of the parties which are relevant for our purposes are :- 1. Whether the plaintiff is Bhumidhar of the plot in suit ? 2. Whether the sale in favour of the plaintiff is invalid ? 3. Is the suit barred by Section 11, C.P.C. ? 7. The learned Munsif held that the plot not being a composite property, the Competent Officer had no jurisdiction to sell it, and that accordingly the sale certificate did not confer title on the plaintiff. In the result he was of opinion that the plaintiff did not become a Bhumidhar. As regards the question of res judicata he was of opinion that the suit was not barred by Section 11 of the Code of Civil Procedure. In view of his findings on the question of plaintiffs title he dismissed the suit. 8. The plaintiff preferred an appeal against his judgment but it was dismissed by the Additional Civil Judge, Farrukhabad, on February 11, 1961. In effect he confirmed all the findings of the learned Munsif. 9. In view of his findings on the question of plaintiffs title he dismissed the suit. 8. The plaintiff preferred an appeal against his judgment but it was dismissed by the Additional Civil Judge, Farrukhabad, on February 11, 1961. In effect he confirmed all the findings of the learned Munsif. 9. It has been argued before me on behalf of the plaintiff that the view of the courts below that the property in suit was not a composite property was wrong and that the plaintiff by virtue of the sale certificate in his favour become the Bhumidhar of the plot. 10. I have heard Sri K.C. Saxena, learned counsel for the appellant at great length not only on the correctness or the incorrectness of the decisions of the two courts below but also on the question whether the relief claimed by the plaintiff in the suit could be granted to him in the circumstances of this case. 11. On a consideration of the entire evidence on the record I am of opinion that the courts below have rightly dismissed the plaintiffs suit, but my reasons are different from those given by the courts below. 12. The plot in suit as we have seen above was owned by Sri Sarwar Khan, Sri Ghulam Huzoor Khan and others. Out of the co-sharers the evacuees Sri Ghulani Sarwar Khan and others appear to have only 2/10th share. In any case they could not have more than 1/4th share which was claimed by the Custodian before the Competent Officer. The rest of the share belonged to non-evacuees so that the plot became a composite property. If the plot became a composite property, as I think it came within the jurisdiction of the Competent Officer who could deal with it under the Evacuee Interest (Separation) Act, 1951. (Hereinbelow called the Act). Indeed the Custodian declared it to be a composite property. Thereafter the Competent Officer should have proceeded under the said Act. I shall now mention some of the provisions of the Act which have a bearing on this part of the case. Section 6 requires the Competent Officer to publish a notice requiring persons claiming interest in the composite property to submit their claims to him. Section 7 deals with the procedure, the form and the time of making the claim. I shall now mention some of the provisions of the Act which have a bearing on this part of the case. Section 6 requires the Competent Officer to publish a notice requiring persons claiming interest in the composite property to submit their claims to him. Section 7 deals with the procedure, the form and the time of making the claim. Section 8 lays down that on receipt of a claim the Competent Officer shall make an enquiry in the manner provided and pass an order determining the interest of the evacuee and the claimants in the property. It also provides that the order shall contain among others the following particulars :- (1) In any case where the evacuee and the claimant are cosharers or partners, their respective shares in the property and the money value of such shares; (2) In any case where the claim is made by a mortgagor the amount due to the evacuee; and 3. In any case where the claim is made by a mortgagee the amount due under the claim in accordance with the provisions of Section 9. Sub-Section (2) of Section 8 is in these terms :- "Where the Custodian under the Administration of Evacuee Property Act, 1950, has determined that the property in question or any interest therein is evacuee property, the decision of the Custodian shall be binding on the Competent Officer :- Provided that nothing contained in this sub-section shall debar the Competent Officer from determining the mortgage debt in respect of such property or any interest therein or from separating the interest of the evacuee from that of the claimant under Section 10". 13. The claims of mortgagees over evacuee properties are dealt with in Section 9. Section 10 deals with powers of the Competent Officer to separate the interest of evacuee from those of the claimants. 13. The claims of mortgagees over evacuee properties are dealt with in Section 9. Section 10 deals with powers of the Competent Officer to separate the interest of evacuee from those of the claimants. It provides that the Competent Officer in particular may in the case of any claim of a cosharer or partner :- (i) direct the Custodian to pay to the claimant the amount of money assessed in respect of his share in the composite property or deposit the same in a civil court having jurisdiction over such property and deliver possession of the property to the Custodian and the claimant may withdraw the amount in deposit in the civil court; or (ii) transfer the property to the claimant on payment by him of the amount of money assessed in respect of the share of the evacuee in the property; or (iii) sell the property and distribute the sale proceeds thereof between the Custodian and the claimant in proportion to the share of the evacuee and of the claimant in the property; or (iv) partition the property according to shares of the evacuee and the claimant and deliver possession of the shares allotted to the evacuee and the claimant to the Custodian and the claimant respectively :- 14. Then comes Section 11 which in certain circumstances vests the entire property or evacuee interest in the Custodian. The material part of Section 12 of the Act is as follows :- "Nothing in this Chapter shall prejudice any rights in respect of the property transferred ....to a claimant under the provisions of this Act which any other claimant or other person may be entitled by due process of law to enforce against the claimant to whom the property is transferred. . . Section 18 reads :- "Save as otherwise expressly provided in this Act, every order made by any appellate officer or competent officer shall be final and shall not be called in question in any court by way of an appeal or revision or in any original suit, application or execution proceedings." Section 20 provides :- (1) Save as otherwise expressly provided in this Act, no Civil or Revenue court shall entertain any suit or proceeding in so far as it relates to any claim to composite property which the Competent Officer is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the competent officer in respect of the composite property shall he granted by any Civil court or other authority. (2) All suits and proceedings pending before a Civil or Revenue Court at the commencement of this Act shall, in so far as they relate to any claim, filed before a competent officer under Section 7, be stayed during the pendency of any proceeding under this Act. (3) Nothing in Sub-Section (1) shall prevent any Civil or Revenue Court from entertaining any suit or proceeding relating to any right in respect of any payment made, or property transferred or delivered, to a claimant under the provisions of this Act which any other claimant or other person may be entitled by due process of law to enforce against the claimant to whom the payment is made or the property is delivered or transferred. It is now necessary to see whether in the instant case plaintiff can succeed and get the relief as claimed by him. The courts below non-suited the plaintiff on a short ground that the property in suit was not a composite property, and that accordingly the competent officer had no jurisdiction to sell it. In support of their view they relied on Azizun Nisa v. Asst. Custodian, (S) AIR 1957 All 561. In that case it was held that "composite property does not include a property owned by tenants in common, some of whom are evacuee though it would include properly held by joint tenants, some of whom are evacuee" for according to the learned Judges deciding that case in a tenancy in common the share of a cosharer though not separated by metes and bounds is divided because it has been ascertained. With great respect I find it difficult to subscribe to their view. Section 2(d) of the Act which defines "composite property" relevantly reads :- "Composite property" means any property which, or any property in which an interest, has been declared to be evacuee property or has vested in the custodian under the Administration of Evacuee Property Act, 1950 and - (i) in which the interest of the evacuee consists of an undivided share in the property held by him as a co-sharer or partner of any other person, not being an evacuee. 15. According to the learned Judges S. 2(d)(i) applies only to "joint tenancy" and not to "tenancy in common" I do not find any warrant for this distinction. It may be that the tenants in common have defined interest in the property but so long as the property remains an undivided property it does come within the definition of S. 2(d)(i) Sitting singly I am bound by the decision and ordinarily I should have followed their decision in spite of my different view. However, it appears that in Azimunnisa v. Deputy Custodian, Evacuee Properties, District Deoria, AIR 1961 SC 365 the Supreme Court has on identical facts held that the disputed property was composite property. It is difficult to conceive of a case of joint tenancy amongst Mohammedans and the Act was, I believe, primarily designed for dealing with the property of Mohammedan evacuee. In view of the Supreme Court decision I would respectfully hold that S. 2(d)(i) also applies to the case of a property held by evacuees and non-evacuees as tenants in common. Accordingly I do not accept the reasoning of the courts below. 16. We shall now consider whether the decisions of the courts below can still be upheld on some other ground. The facts already stated earlier would show that the first defendant was a mortgagee of a 1/3rd share in the plot. And on the fool of that mortgage he had obtained much before the sale certificate a decree in his favour for the sale of the mortgage share. In spite of the sale certificate in the plaintiff's favour the mortgagee right of the first defendant would remain in tact by virtue of the provisions of S. 12. 17. And on the fool of that mortgage he had obtained much before the sale certificate a decree in his favour for the sale of the mortgage share. In spite of the sale certificate in the plaintiff's favour the mortgagee right of the first defendant would remain in tact by virtue of the provisions of S. 12. 17. Section 20(3) which appears to be complementary to S. 12 would show that Civil or Revenue Court is not precluded from entertaining any suit or proceeding relating to any right in respect of any property transferred or delivered to a claimant under the provisions of the Act which any other claimant or other person may be entitled by due process of law to enforce against the claimant to whom the property is transferred or delivered. 18. In view of Ss. 12 and 20(3) of the Act I am of opinion that the sale certificate would not extinguish the first defendant's right under the mortgage decree. 19. Having come to the conclusion that in view of these provisions the plaintiff cannot get the relief claimed I do not think it proper to decide what right the plaintiff gets under the sale certificate. 20. Learned counsel for the plaintiff has argued that by virtue of S. 11 of the Act he got the plot free from all encumbrances and that accordingly he was entitled to the relief claimed by him. S. 11 of the Act relevantly reads :- "(1) Where in respect of any property, notice under S. 6 is issued but no claim is filed or found to exist or where any claim in respect of such property is found to exist and the competent officer separates the evacuee interest therein under S. 10, the whole property, or, as the case may be, the evacuee Interest in the property thus separated shall vest in the Custodian free from all encumbrances and liabilities and any .... transfer...... under S. 10, in satisfaction of any claim in respect of the property shall be a full and valid discharge of all claims in respect of the property." 21. A bare reading of this section would show that on separation of the evacuee interest from non-evacuee interest what vests in the Custodian free from all encumbrances and liabilities is the evacuee interest. A bare reading of this section would show that on separation of the evacuee interest from non-evacuee interest what vests in the Custodian free from all encumbrances and liabilities is the evacuee interest. I am supported in this view of mine by a decision or the Supreme Court in Abdul Hakim Khan v, Regional Settlement Commr.-cum-Custodian of Evacuee Property, Bhopal, AIR 1961 SC 1391 . That case clearly shows that it is only the evacuee interest that vests in the Custodian and the same passes to the custodian free from all encumbrances. In this case it is evident that what is being sought to be auctioned in the execution case is the non-evacuee interest of the co-sharers who were not evacuees. The plaintiff cannot derive any benefit from S. 11. 22. Learned counsel for the plaintiff has also relied on S. 18 of the Act in support of his submission that once the competent officer had transferred the plot the sale could not be called in question in any court. It may be observed that S. 18 opens with a non obstante clause "save as otherwise expressly provided in this Act". Sections 12 and 20(3) provide otherwise and S. 18 cannot over-ride them. There is no provision in the Act to the effect that the interest of a non-evacuee who has not preferred a claim before the competent officer would be extinguished. Even if we assume that the proceedings before the competent officer were fair and regular the right of the first defendant to proceed with his execution case would not be effected. The sale certificate obtained by the plaintiff is subject to the rights of the first defendant. Accordingly even if the plaintiff has acquired any right to the plot by virus of the sale certificate he cannot get the relief of injunction for restraining the execution proceeding. 23. In the end Sri K.C. Saxena submitted that since I am of opinion that the property is a composite property the case may be sent back for a proper determination of the other points involved in the case. This is a suit praying for an injunction against the defendant and unless the plaintiff satisfies the court that his claim for permanent injunction is decreeable he cannot get the relief claimed. This is a suit praying for an injunction against the defendant and unless the plaintiff satisfies the court that his claim for permanent injunction is decreeable he cannot get the relief claimed. As I have already held that in the circumstances of the present case the plaintiff has failed to prove that he is entitled to the injunction prayed for. I do not think any useful purpose will b« served by sending back the case to the lower appellate court for the determination of this point. I have myself looked into the entire record and have come to the conclusion that there are no merits in the plaintiff's case. Sri Saxena has relied on three cases in support of his submission, M/s. Trojan and Co. v. Nagappa Chettiar, AIR 1953 SC 235 ; Sheodhari Rai v. Suraj Prasad Singh, AIR 1954 SC 758 and Custodian General, Evacuee Property, New Delhi v. Shanti Sarup Prabh Dayal, AIR 1981 Punj 497. I have looked into all these cases but they do not help him. 24. For the reasons discussed above the appeal fails and is dismissed with costs throughout. Appeal dismissed.