JUDGMENT : ( 1. ) THIS appeal filed by the defendant No. 1 is directed against a judgment of the Third Additional District Judge, Bhopal, dated 27 th July, 1968, decreeing the plaintiffs suit for possession of 207-43 acres of land which had been declared as evacuee Property under section 7 of the Administration of Evacuee Property Act, 1950. ( 2. ) THE facts leading to the appeal may be shortly stated. One Mohammad Ahsan was the Khatedar of 207. 43 areas of land in village Chhirpipaliya. He was indebted to "anjuman Chhirpipaliya", a Co-operative Society, registered under the Bhopal Co-operative Societies Act, to the extent of Rs. 3,020. 25, which debt was recoverable as arrears of land revenue. He died on 4th July 1945 and the land was inherited by his brother Mohammad Mohsin, who also did not pay off the debt. In 1949, Mohammad Mohsin migrated to Pakistan. After his migration, the Society applied to the Tahsildar, Silwani for recovery of its debt by coercive process. The land was, therefore, sold at a public auction held by the Tahsildar, Silwani and purchased by the plaintiff Monnoolal for a sum of Rs. 5,500. After the issue of the sale-certificate to him on 25th June 1951, the plaintiff was placed in possession of the land by the Tahsildar. ( 3. ) ON 17th February 1953, the Custodian of Evacuee Property served a notice on the plaintiff under section 7 (1) of the Act, calling upon him to show cause why the property should not be declared as evacuee Property. The plaintiff entered appearance in the proceedings and contested the authority and jurisdiction of the custodian to treat the property purchased by him as evacuee property. His objections, however, did not prevail. After holding an enquiry, the Custodian held that the property was evacuee Property and made a-declaration to that effect. The plaintiff unsuccessfully challenged the order up to the Custodian General of Evacuee Property but failed. Thereafter, the plaintiff applied to the Custodian for confirmation of sale under section 40 of the Act but that application also failed at all its stages. In consequence thereof, the custodian entered into possession of the property. Thereupon, the plaintiff brought the present suit on 5th February 1959. Thereafter, the plaintiff applied to the Custodian for confirmation of sale under section 40 of the Act but that application also failed at all its stages. In consequence thereof, the custodian entered into possession of the property. Thereupon, the plaintiff brought the present suit on 5th February 1959. He mainly claimed the relief of possession of the suit land against the Custodian on the ground that the various orders passed by the different authorities were all illegal, void and without jurisdiction and, therefore, the dispossession of the plaintiff from the suit land was wrongful and without due process of law. He also claimed, in the alternative, the relief of refund of Rs. 8. 500, the amount of purchase money paid by him at the auction, against the State Government. ( 4. ) THE defendants contested the plaintiffs suit on different grounds. The defendant No. 1, the Custodian of Evacuee Property, pleaded inter alia that the plaintiff had no right of suit as the jurisdiction of the civil Court to entertain the suit was barred under section 46 of the Act. Further, that the suit land belonged to Mohammad Mohsin who had migrated to Pakistan prior to the auction sale and, therefore, the auction of the suit land was invalid. Alternatively, that the orders of the Custodian was not in any way illegal or without jurisdiction or in excess thereof. The declaration of the Custodian that the suit land was evacuee property under section 7 of the Act was final and conclusive and could not be assailed in the suit. Lastly,- out of the sale-proceeds of rs. 8,500, the Anjuman Chhirpipaliya had received Rs. 3,020. 25 towards its debt and the balance of Rs. 5,479. 75 was received by the Mukhtyar Aam of mohammad M6hsin. They were thus necessary parties and in their absence the suit could not proceed. The defendant No. 2, the State Government, disputed its liability for refund of the consideration, contending that no duty was cast upon the Tahsildar to enquire into the ownership or otherwise of the suit land. At an auction sale, a person is always deemed to purchase the right, title and interest of the judgment-debtor and accordingly takes the property subject to all defects in title. The provision of the Bhopal State Land Revenue Act, 1932, under which the auction was held did not warrant any enquiry into the questions of title. At an auction sale, a person is always deemed to purchase the right, title and interest of the judgment-debtor and accordingly takes the property subject to all defects in title. The provision of the Bhopal State Land Revenue Act, 1932, under which the auction was held did not warrant any enquiry into the questions of title. Furthermore, the Tahsildar did not act as an agent of the state Government in putting the suit land to auction but he was acting in exercise of his statutory powers and was, therefore, not an agent of the State government. Further, the Society and Mohd. Mohsin who had benefitted from the auction sale, had not been made parties to the suit. They were necessary parties and in their absence the suit was not maintainable. ( 5. ) IT was not disputed before the learned trial Judge that Mohammad mohsin had migrated to Pakistan before the suit land was put to auction. He was, therefore, an "evacuee" within the meaning of section 2 (d) of the Act. He then went into the question whether the property was or was not evacuee property. Following the view of their Lordships of the Supreme Court in ebrahim Aboobaker v. Tek Chand (A I R 1953 SC 298.), he held that the suit land having been sold to the plaintiff at an auction, he did not acquire the property by a "transfer" from an evacuee and, therefore, the property was not "evacuee Property" within the meaning of section 2 (d) of the Act. According to him, the word "transfer" does not include an involuntary transfer. Upon the view that the property was not evacuee property, the learned Judge further held that the Custodian had no jurisdiction to declare the property as "evacuee Property" under section 7 of the Act. He also held that the notice issued under that section was illegal for that reason and it did not invest the Custodian with any jurisdiction to make a declaration in respect of the suit land. Lastly, the learned Judge, following certain decisions, held that the jurisdiction of the civil Court was not barred under section 46 of the Act. For all these reasons, he decreed the plaintiffs suit for possession against the defendant No. 1. ( 6. Lastly, the learned Judge, following certain decisions, held that the jurisdiction of the civil Court was not barred under section 46 of the Act. For all these reasons, he decreed the plaintiffs suit for possession against the defendant No. 1. ( 6. ) THE only question for consideration in the appeal is whether the jurisdiction of the civil Court to entertain the suit is barred under section 46 of the act. Section 46 with which we are concerned reads as follows: - "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 properly; or (b ). . (c) to question the legality of any action taken by the Custodian-General 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 Act to determine. " Under clause (a) of section 46, jurisdiction of the civil and revenue Courts is expressly barred and they are forbidden 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. ( 7. ) THE question before us is no longer res Integra. The matter is directly governed by the decision of their Lordships of the Supreme Court in Custodian, evacuee Property, Punjab v. Jafran Begum ( AIR 1968 SC 169 . ). There, while confederating the scheme of the Act, their Lordships have stated :- "under section 7 the Custodian has to determine whether certain property is or is not evacuee property. To determine that he is to find out whether a particular person is or is not an evacuee. 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 section 7 which shows that the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under section 7 the Custodian cannot decide what are called complicated questions of law or questions of title. Now there is nothing in section 7 which shows that the Custodian cannot enter into all questions whether of fact or of law in deciding whether certain property belongs to an evacuee. There is no reason to hold that under section 7 the Custodian cannot decide what are called complicated questions of law or questions of title. It is difficult to see how the Custodian can avoid deciding a question of title if it is raised before him in proceedings under section 7. " xx xx xx xx "it is difficult to see how a distinction can be drawn between decisions under section 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issue of law or of fact by section 28 and section 46 bars the jurisdiction of civil and revenue Courts in matters which are decided under section 7 whatever may be bais of decision, whether issues of fact or of law and whether simple or complicated. " Their Lordships then conclude by stating :- "it may be added that the only question to be decided under section 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 a collateral fact. Therefore there is no scope for the application of that line of cases where it has been held that where the jurisdiction of a tribunal of limited jurisdiction depends upon first finding certain state of facts, it cannot give itself jurisdiction on a wrong finding of that state of fact. Here under section 7 the Custodian has to decide whether certain property is or is not evacuee property and his jurisdiction does not depend upon any collateral fact being decided as a condition precedent to his assuming jurisdiction. In these circumstances, section 46 is a complete bar to the jurisdiction of civil or revenue Courts in any matter which can be decided under section 7. This conclusion is reinforced by the provision contained in section 4 (1) of the Act which provides that the Act overrides other laws and would thus override section 9 of the Code of civil Procedure on a combined reading of sections 4, 28 and 46. This conclusion is reinforced by the provision contained in section 4 (1) of the Act which provides that the Act overrides other laws and would thus override section 9 of the Code of civil Procedure on a combined reading of sections 4, 28 and 46. But as we have said already, section 46 or section 28 cannot bar the jurisdiction of the High Court cannot under article 226 of the Constitution, for that is a power conferred on the High Court under the constitution. " It, therefore, follows that the plaintiffs suit for possession is barred under section 46 of the Administration of Evacuee Property Act, 1950. ( 8. ) ON that view, we do not think it necessary to go into the question whether the suit land was evacuee property or not as the decision of the Custodian on that question has attained a finality which cannot now be upset. Indeed, when the jurisdiction of the Court to entertain the suit is barred, the question whether the property is or is not evacuee property does not arise. ( 9. ) THAT leaves us with the alternative relief claimed by the plaintiff. We are afraid, for non-joinder of necessary parties that relief cannot be had. Admittedly, from out of Rs. 8,550 paid by the plaintiff, a sum of Rs. 3,020. 25 was paid to Anjuman Chhirpipaliya and the balance of Rs. 5,479. 75 was withdrawn by. the Mukhtyar Aam of Mohammad Mohsin. Since they were the persons who withdrew the sale-proceeds, they were necessary parties to the suit for granting any relief for refund of the auction price. The Tahsildar, Silwani was not acting as an agent of the State Government, but he was acting in exercise of his own statutory powers. The State Government is, therefore, not liable to refund the consideration amount paid by the plaintiff. ( 10. ) THE appeal, therefore, succeeds and is allowed with costs. The judgment and decree of the learned Third Additional District Judge are set aside and the plaintiffs suit is dismissed with costs throughout. Counsels fee as per schedule or certificate, whichever is less. Appeal allowed.