JUDGMENT B.D. Agarwal, J. - This is defendant's Second Appeal. 2. The dispute relates to plot No. 123 corresponding to new plot No. 176 comprising of an area of 39 acres situate in village Mahmoodpur Nawabwali, Tehsil Sambhal, district Moradabad. One Majid Ali Khan was admittedly the zamindar of the area where this land is situated. The character of the land was that of an intermediary's grove. Majid Ali Khan migrated to Pakistan sometime during 1952-55. The suit giving rise to this Second Appeal was instituted by the plaintiff- respondents on May 21, 1962, alleging that the plot in question ceased to retain the character of grove and that they had been in possession for nearly 16 years preceding the suit. On Feb. 19, 1951, it was further alleged, they had obtained a patta of this land from Moinul Hasan, Karinda of the Zamindar for the sake of regularisation of their possession. With effect from July 1, 1952, they became the sirdars of this land which was not declared evacuee property at any stage. On Aug. 18, 1960, the Managing Officer, Evacuee Property, however, purported to sell this land to defendants Nos. 5 and 6 - the appellants - and on the basis thereof these defendants threatened and intended to disturb the possession of the plaintiffs. The relief sought is declaration to the effect that the sale claimed by these defendants is void and permanent injunction is also claimed to restrain the defendants from interfering with the possession of the plaintiffs over the said land. 3. In defence it was asserted that the land in question was declared evacuee property after issue of notice under S. 7(1) of the Administration of Evacuee Property Act, 1950 to Majid All Khan. This was followed by sale dated Aug. 18, 1960 by the Managing Officer Evacuee Property, to defendants Nos. 5 and 6. It is denied that there was any patta executed in favour of the plaintiffs by or on behalf of the zamindar or that they have been in possession and it is also maintained that the plot retains the character of grove. The bar of jurisdiction of the civil courts on the basis of S. 46 of the Administration of Evacuee Property Act, 1950 and S. 331 of the U. P. Zamindari Abolition and Land Reforms Act is also pleaded. 4. The trial Court decreed the suit on Sept. The bar of jurisdiction of the civil courts on the basis of S. 46 of the Administration of Evacuee Property Act, 1950 and S. 331 of the U. P. Zamindari Abolition and Land Reforms Act is also pleaded. 4. The trial Court decreed the suit on Sept. 22, 1965 being of opinion that the land in dispute had not been declared evacuee property after issue of notice required under S. 7(1) of the Administration of Evacuee Property Act in respect of this land to persons concerned. The jurisdiction of the civil court was not barred. The plaintiffs have been in possession and part of this land has been in their use as abadi also where they have all kinds of miscellaneous agricultural uses. Majid Ali Khan retained no interest in the property subsequent to the date of vesting. Defendants 5 and 6 could not claim to have acquired any right by the alleged purchase made from the Managing Officer. Evacuee Property on Aug. 18, 1960. The appeals filed by the defendants against this decree were allowed on Aug. 5, 1968. The defendants preferred Second Appeal No. 2548 of 1968. The learned single Judge who decided this appeal found that there had been no notification made under S. 7 of the Administration of Evacuee Property Act in respect of the plot in dispute and the jurisdiction of the civil courts on the ground of S. 46 of that Act could not be claimed to be barred. The plea in regard to the bar of jurisdiction under S. 331 of U. P. Act 1 of 1951 was left over and the appellate Court was directed to re-decide the appeals on merits in accordance with the law. Subsequent to this remand dated September 19, 1969, the lower appellate Court on Aug. 9, 1972, dismissed the appeals confirming thereby the findings arrived at by the trial Court. 5. Aggrieved, the defendants 5 and 6 have preferred this Second Appeal. 6. Indisputedly, the land in question comprised in Plot No. 123 corresponding new plot No. 176, covering the area of .39 acres is recorded in Zeman 14(4) of the U. P. Land Records Manual in the Khatauni and Khasra of 1356 and 1359 fasli. The entry thus pertains to an intermediary's grove. In the khasra of 1359 fasli (Ex. 6. Indisputedly, the land in question comprised in Plot No. 123 corresponding new plot No. 176, covering the area of .39 acres is recorded in Zeman 14(4) of the U. P. Land Records Manual in the Khatauni and Khasra of 1356 and 1359 fasli. The entry thus pertains to an intermediary's grove. In the khasra of 1359 fasli (Ex. 8) specification as to the existence of six mango trees, one Jamun tree and one Babul tree on this land is also found. Majid All Khan was admittedly the intermediary vis-a-vis the area where this land is situate. In consequence on July 1, 1952, which is the date of vesting under the U.P. Zamindari Abolition and Land Reforms Act, 1950, this land shall be deemed to be settled with Majid Ali Khan aforesaid in capacity as Bhumidhar under S. 18(l)(a) of the Act. 7. Learned counsel for the defendant- appellants argued that there is no evidence on the record to establish the execution of patta by or on behalf of the zamindar in favour of the plaintiffs-respondents as claimed by the latter. The trial court observes in this connection that the patta has not been produced in original nor was secondary evidence given in proof thereof. It was also not made out from any evidence, oral or documentary, in the Court below that Moinul Hasan, the person alleged to have executed the Patta in capacity as the karinda had the power or authority to do so for and on behalf of the zamindar. In the absence of these primary facts being brought on record, the inference as to the existence of Patta could not legitimately be drawn on the basis merely of the order dated Feb. 27, 1953, passed by the Naib Tehsildar directing mutation of the plaintiff-respondents over the said land vide Ex. 3. There is force consequently in the contention for the appellants that in face of there being challenge from their side as to the primary facts concerning the factum and validity of the Patta in question, there could be no assumption made in favour thereof on the mere ground that mutation was directed by the Naib Tehsildar. 8. Assuming therefore that the plaintiff-respondents did not acquire right or title to the land on the strength of any patta in their favour by or on behalf of zamindar dated Feb. 8. Assuming therefore that the plaintiff-respondents did not acquire right or title to the land on the strength of any patta in their favour by or on behalf of zamindar dated Feb. 19, 1951, the question still remains whether they have been in possession over the disputed land as claimed by them and, if so, the effect thereof. The finding on the point of possession concurrently reached by the courts below is in favour of the plaintiff-respondents. In this connection both oral and documentary evidence has been taken into account. Nothing could be suggested in fact for the appellants in derogation of the finding reached on this score. In the Khasra of 1362 fasli (Ex. 7), the possession recorded is of the plaintiffs showing .26 acres as covered by grove and the rest as abadi. The khatauni of 1363 fasli (Ex. 6) also records their possession. P. W. Bashir Ahmad, one of the plaintiffs, came to the witness-box and referred to the user by him for miscellaneous agricultural purposes over this land. He was corroborated by P. W. Behari. Chandra defendant said, on the other hand, that they had been put in possession by the Managing Officer on the execution of the sale and that the Dakhalnama was executed in proof thereof. No such Dakhalnama has seen the light of the day in this case. The contention for the plaintiffs also finds support from the observations made by the Advocate Commissioner as appearing from his report dated 14th April, 1963, relied by the trial court vide Paper 30/31-C. It was noticed that the southern portion of the land covering about .16 acres was in use as abadi and the northern portion contained trees etc. It is admitted by the other side as well that the plaintiffs have had their houses to the immediate south. For the appellants there was an application made on April 12, 1985 before this Court to the effect that the plaintiff-respondents have since migrated to Pakistan and on the basis thereof it was argued before me by the learned counsel that the relief claimed for injunction has become infructuous. I am unable to agree, even if the plaintiffs have gone to Pakistan, there is nothing on the record to bear out that the land in question is not retained in their possession through their servants, agents or otherwise. I am unable to agree, even if the plaintiffs have gone to Pakistan, there is nothing on the record to bear out that the land in question is not retained in their possession through their servants, agents or otherwise. There has been no change brought about in so far as the possession over the disputed land is concerned. 9. Reliance for the appellants is placed by the learned counsel on the certificate of sale dated Oct. 20, 1960 issued to them by the Managing Officer, Evacuee Property vide Ex. A 1, stating that this land had been sold in their favour on Aug. 18, 1960. It was argued that thereby the appellants have acquired title to the land. The plaintiff-respondents have maintained throughout that this land was not declared evacuee property at any stage and consequently no question arose of the same being sold as of right by the Managing Officer, Evacuee Property. The notice dated Jan 21, 1955, (vide Ex. B-2) claimed to have been issued under S. 7(1) of the Administration of Evacuee Property Act is material in this connection. A perusal thereof reveals that it was addressed to Majid Ali Khan and it was confined to his interest in the zamindari property alone. The property specified therein is : "Zamindari in village Mohd. Pur Nawabwali Mohal Salim K.K. No. 1, Share 1638/98304 area 309-14 L. R. 260". This denoted, therefore, that the property notified thereunder was the interest of Majid All Khan as intermediary to the extent of 1638 Sehams in the particular Mohal and there is absolutely no reference made to the specific plot No. 123 corresponding to the new plot No. 176 or any portion thereof. This is also so revealed from the order made by the Assistant Custodian (Rural) dated 4th March, 1955 vide Ex. I wherein he declared the aforementioned zamindari property as evacuee property. The notification was neither in respect of plot No. 123 concerned in the present dispute nor was notice given to any of the plaintiff- respondents. 10. Controversy on this aspect of the alleged bar of S. 46 of the Administration of Evacuee Property Act, is concluded by the decision of a learned single Judge dated 19th of Sept. 1969 between the parties. 10. Controversy on this aspect of the alleged bar of S. 46 of the Administration of Evacuee Property Act, is concluded by the decision of a learned single Judge dated 19th of Sept. 1969 between the parties. It was held that the interest as bhumidhar in a particular piece of land is distinct from the right to compensation accruing due to the vesting of the right, title and interest to an intermediary in an estate and further that the plot in question was not notified under section 7(1). It was also observed that where the property has not been notified under S. 7, the jurisdiction of the civil court will not be excluded. This was concluded then by stating "The lower appellate court was, therefore, wrong in holding that the suit out of which this appeal arises was barred by the provisions of S. 46 of the Act." This should leave no room to doubt that a decision on this aspect has already been arrived at between the parties and the same has become final. This apart, on merits also, I do not find substance in the contention advanced for the appellants in this respect. 11. Section 46 of the Administration of Evacuee Property Act, 1950, bars the jurisdiction of the civil court in certain matters. This does not operate in the absence of notification of evacuee property under S. 7(1) of the Act. In accordance with S. 7(1) where the Custodian is of opinion that any property is evacuee property, he may after causing notice thereof to be given in the prescribed manner to the persons interested, and after holding such enquiry into the matter as the circumstances of the case permit, pass an order declaring any such property to be evacuee property. The notice has, therefore, necessarily to be given to the persons interested and in respect of the property sought or claimed to be declared as evacuee property. The declaration could be made in respect of such property meaning hereby the property whereof notice to persons interested has been given. In the event of notification as required under this provision being made a person aggrieved may take the matter to an appeal under S. 24 and a revision may also be brought to the Custodian General. These provisions do not get attracted in the absence of the notification under S. 7(1). In the event of notification as required under this provision being made a person aggrieved may take the matter to an appeal under S. 24 and a revision may also be brought to the Custodian General. These provisions do not get attracted in the absence of the notification under S. 7(1). The law is well established that no property of any person could be declared to be evacuee property unless that person had also been given a notice under S. 7, vide Dr. Zafar Ali Shah v. Assistant Custodian, Evacuee Property, Jhansi, AIR 1967 SC 106 , In the absence of notice to the petitioners in that case it was held that their interest in the house could not have vested in the Custodian. In Ram Gopal Reddy v. Addl. Custodian Evacuee Property, Hyderabad, AIR 1966 SC 1438 it was reiterated that where the property admittedly belonged to the evacuee and the person riling the suit claimed to be the transferee from the evacuee, the suit would certainly be barred in view of S. 46 of the Act. In that case it was admitted, as stated in para 4, that the appellants had received notice from the Deputy Custodian under S. 7(1), but had neglected to appear before him and it was in those circumstances that the Deputy Custodian declared the property to be evacuee property. The material fact distinguishing the instant case is that therein the appellant had received notice under section 7(l) and it was not in dispute that the property in question was evacuee property. Likewise in Haji Esmail Noor Mohammad and Co. v. Competent Officer, Lucknow, AIR 1967 S.C. 1244 , the facts denoted that the interest of the evacuee in the partnership business vested in the Custodian and this vesting was preceded by issue of notice to the firm under S. 7(1) informing the firm that the Kanpur property thereof would be taken possession of. S. 7 empowers the Custodian to determine what properties are evacuee properties. The Custodian determines that after notice to persons interested and after such enquiry as the circumstances of the case permit. S. 7 empowers the Custodian to determine what properties are evacuee properties. The Custodian determines that after notice to persons interested and after such enquiry as the circumstances of the case permit. In this connection he may decide both questions of law and of fact, but the operation of the provisions contained in Sections 24, 27 and 46 does not arise in the absence of"such adjudication by the Custodian vide Custodian of Evacuee Property, Punjab v. Jafran Begum, AIR 1968 SC 169 . 12. Assuming, as contended for the appellants before me, that this land was held as grove by the intermediary, namely Majid Ali Khan, the position in view of S. 18(1)(a) of the U.P. Zamindari Abolition and Land Reforms Act with effect from July 1, 1972, shall, as stated above, be that he would be deemed to have become the bhumidhar thereof. The right, title and interest of Majid Ali Khan in capacity as intermediary vested in the State by virtue of notification under S. 4 read with S. 6 of this Act, but the interest created in capacity as bhumidhar so far as grove land is concerned is distinct from the proprietary right as intermediary that vested in the State. The bhumidhari right which is created by S. 18 is a new right altogether and is independent of the proprietary interest as intermediary which was extinguished as has been laid down in Ran Sheo Ambar Singh v. Allahabad Bank Ltd. Allahabad, AIR 1961 SC 1790 , It follows, therefore, that notice under S. 7(1) of the Administration of Evacuee Property Act had to issue in respect of plot No. 123 corresponding to the new plot No. 176 in dispute, deemed to be held as bhumidhari by Majid Ali Khan, before this could be declared evacuee property. No such notice having admittedly been issued to him in respect of this property, it could not be held to be evacuee property. The bar of S. 46 consequently cannot be invoked by the appellants. It is not open to them to contend therefore that the plaintiff-respondents should have gone in appeal under S. 24 or in revision under S. 27 instead of approaching the civil Court for declaration that the transaction of sale is void or for permanent injunction for that matter. The bar of S. 46 consequently cannot be invoked by the appellants. It is not open to them to contend therefore that the plaintiff-respondents should have gone in appeal under S. 24 or in revision under S. 27 instead of approaching the civil Court for declaration that the transaction of sale is void or for permanent injunction for that matter. The property in question having not been declared evacuee property in accordance with law, the sale dated 18th Aug. 1960 relied for the appellants is of no legal effect. 13. True it is, as found above, that the plaintiff-respondents failed to establish that they had obtained patta from or on behalf of the zamindar of Feb. 19, 1951. The effect is that they could not claim to have become sirdars under S. 19 of the Zamindari Abolition and Land Reforms Act with effect from July 1, 1986 AIL L.J./25 IV (1) 1952. But despite this, since the plaintiff- respondents have been found to have continuously been in possession, they are competent to maintain the claim for permanent injunction besides declaration as against these not shown to have a better title. Despite the failure of the plaintiff-respondents to establish their title as Sirdars, they can on the strength of their possession resist interference from the defendant appellants who have no better title than to the land in suit vide M. Kallappa Setty v. M.V.L. Rao, AIR 1972 SC 2299 ; Smt. Savita v. Nijja, 1956 All LJ 858 and Daya Nand v. Harpal, 1982 All CJ 99 : 1982 All U 178. 14. A feeble argument was then also advanced for the appellants to the effect that the suit before the civil Court should have been taken as barred in view of S. 331(1) of the U.P. Zamindari Abolition and Land Reforms Act. The argument is that the suit instituted should have been in the revenue Court. This need not detain us long. Sub- sec. (1-A) of S. 331 makes it clear that an objection on this score cannot be entertained at this stage unless it was taken in the Court of the first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. This has been interpreted as analogous to the provisions contained S. 21, C.P.C. and S. 11 of the Suits Valuation Act. This has been interpreted as analogous to the provisions contained S. 21, C.P.C. and S. 11 of the Suits Valuation Act. An objection as to the want of jurisdiction on this account was raised before the trial Court no doubt in the present case, but there is nothing to suggest that the decision on the issue by the Courts below against the appellants has given rise to a failure of justice. A necessary condition in this behalf thus remains unfulfilled and in the absence thereof the plea is untenable vide Sabha Chand v. Narain Singh, 1981 All CJ 138 : 1981 UPLT NOC 130, and Baldeo v. Beni Lal Kedia, 1981 ACJ 148 : 1981 UPLT NOC 74. 15. The appeal consequently fails and is dismissed with costs to the plaintiff- respondents.