JUDGMENT 1. - The facts, simple enough as they are, somewhat complicated but it is necessary to disentangle them to bring out the point in controversy. Harjiram (since deceased, now being represented by his legal heirs and representatives) filed a suit for redemption of mortgage and possession of a shop in Haveli Morusi, situated in village Khanpur Tehsil Kishangarh (district Alwar) with a 'Medhi' and other constructions including Chabutra, against the defendants, Parasram Salla, Meerchand, and Kausbalchand. 2. Here, a few salient facts which are primitive in regard to the property in question, need emphasis. The deceased, Chandkhan left three sons, namely, Nasar Khan, Umar Khan and Mohd. Khan, behind him who stayed in India and did not migrate to Pakistan. The heirs of these sons of Chandkhan lived in the village. The heirs of Chandra Bhan and Chhota (brother of Chand Khan s/o Gulabi except Dalla and Moja (ss/o Chhota, migrated to Pakistan. The disputed shop had fallen into the share of defendant No. 2-Salla's father, Nasar Khan who mortgaged the same by a registered mortgage deed on May 30, 1944 with Parasram (Defendant No. 1). Nasar Khan died and his legal representative (defendant No. 2, Salla) sold the property on May 27, 1966 to the plaintiff. The plaintiff-Harjiram is alleged to have requested the defendant No. 1 (Parasram) for redemption of the suit property but in vain which led the plaintiff to file the present suit out of which the present second (appeal) has arisen. 3. The defendant No. 3 Amirchand, in his written statement stating that it was not known to him as to whether the Haveli-in which the disputed shop exists was owned and possessed by Chandkhan, Chandra Bhan and Chhota, all sons of Gulab pleaded that Salla was not authorised to alienate the property as he alone was not entitled to dispose of the same, inasmuch the shop in question was declared as Evacuee property as is evident from the fact that Mohd. Umar Khan and others have approached the competent officer for determination of their share which matter has been still pending under investigation. Umar Khan and others have approached the competent officer for determination of their share which matter has been still pending under investigation. The defendant No. 3 also pleaded that the defendant-Salla has not so far obtained a certificate under Section 16 of the Administration of Evacuee Properties Act with regard to the suit property, and further that, Nasar Khan and his son Banna migrated to Pakistan in the year 1947, therefore, the property in question vested in custodian. 4. On the basis of the pleadings of the parties, six issues were framed by the trial Court. After recording the evidence of the parties, the trial Court dismissed the suit of the plaintiff holding that the property was a composite one duly vested in Custodian department and, therefore, the civil Court had no jurisdiction to entertain the suit. However, other issues were decided by the trial Court in favour of the plaintiff. Having aggrieved against the aforesaid findings arrived at by the trial Court in its judgment and decree dated 16.2.1973, the plaintiff went in appeal which was also dismissed by the first appellate court vide its judgment and decree dated 25.4.1973, which has been assailed in this second appeal. 5. The first appellate court merely considered the point of jurisdiction- which was only the point before it, viz., whether a Civil Court has jurisdiction to entertain the suit ? On this point, it came to the conclusion that by virtue of the provisions of Sections 46 and 28 of the Administration of Evacuee Property Act, 1950, (for brevity, 'the Act'), jurisdiction of the Civil Court is barred and therefore the suit as was rightly held by the trial Court was not maintainable. 6. I have heard the learned counsel for the parties and have perused the relevant record. 7. From what has been stated above, there can be gainsaying that the plaintiff's suit was dismissed fielding it to be not maintainable for want of jurisdiction, merely on issue No. 5 which I would hereinafter reproduce by translating it into English version, against the plaintiff and in favour of the defendants. "Whether the suit property has been vested in custodian and is a custodian property and if so, has the Court no jurisdiction to entertain the suit? As already stated, both the courts-below held that the suit property vested in the custodian and is an evacuee property. "Whether the suit property has been vested in custodian and is a custodian property and if so, has the Court no jurisdiction to entertain the suit? As already stated, both the courts-below held that the suit property vested in the custodian and is an evacuee property. The courts below placed reliance on the decision of the Supreme Court in Custodian Evacuee Property v. Iafram Begum, ( AIR 1968 SC 169 ) , and also other citations of the different High Courts. However, main stress was laid on Section 46 of the Act. 8. Relying on the statements of Amir Chand (DW 1) and Parasram, the trial Court observed that the land in dispute has been verted in custodian. The trial Court further took into consideration the statement of Salla (PW 2) also who has stated that his portion of the property has vested in custodian and for, he has also moved an application (Ex A. I and Ex. A. 2) which were ultimately rejected by the concerned authorities on 12.6.1968 (vide Ex. 3). Harjiram (PW 1) has also, in his cross-examination admitted that the orders were passed by the concerned authorities with regard to the suit property holding it to be an evacuee property and the proceedings were pending. 9. Taking help of the afore-mentioned evidence, learned counsel for the appellant urged that if the aforementioned evidence is read in the manner discussed by the courts-below then too, question arises as to whether the property in question was declared as an evacuee property under Section 7 of the Act, and whether a notification was issued under that Section; because, according to the learned counsel, without that, a property cannot be held to he an evacuee one. To substantiate his argument, learned counsel then placed reliance on the decision of the Supreme Court in Rajendra Prasad v. Gyan Chandra ( AIR 1980 SC 1206 ) . 10. To substantiate his argument, learned counsel then placed reliance on the decision of the Supreme Court in Rajendra Prasad v. Gyan Chandra ( AIR 1980 SC 1206 ) . 10. On the other hand, learned counsel for the respondent contended that in view of the evidence, both documentary and oral as epitomised above, it can safely be said that the property in question can be declared as evacuee property and further in view of the decision of the Supreme Court in Custodian Evacuee Property v. Iafram Begum (supra), the present suit was not maintainable and further that the jurisdiction of the Civil Court is specifically barred by virtue of Section 46 of the Act for entertaining or adjudicating upon any question whether any property or any right to or interest in any property is or is not evacuee property and therefore according to the learned counsel for the respondent, both the courts-below were justified in dismissing the suit of the plaintiff. 11. I have considered the rival contentions of the learned counsel for the parties, First of all, I would like to have a broad brush back drop of primitive features of the legal law as it stood prior to coming into force of the Act, 1950. Then, there was in force an Ordinance for the administration of evacuee property, titled as. The Matsya Evacuees (Administration of Property) Ordinance, 1948 (No. 11 of 1948) published in the United State of Matsya's Gazette Extra ordinary (No. 60. Alwar, Saturday 28th August, 1948-Vol-I) promulgated by the Raj Pramukh on 2nd August, 1948 Under Section 4 of the said Ordinance, 1948, all the vacuee properties situated within the United State of Matsya (now the part of Rajasthan) were vested in the Custodians for the purposes of this Ordinance and were continued to be so vested until the Government of the United State of Matsya by notification otherwise directed. According to this Ordinance, the e was no need to declare any property as evacuee but, looking to the scheme of the said Ordinance, the evacuee property automatically vested in the United State of Matsya and was allowed to continue until the Government of United State of Mastya by notification otherwise directed. Any transfer of such property was to be confirmed by the Custodian and, therefore, a prior sanction of the Government was necessarily to be obtained under Section 5-A of the said Ordinance, 1948. Any transfer of such property was to be confirmed by the Custodian and, therefore, a prior sanction of the Government was necessarily to be obtained under Section 5-A of the said Ordinance, 1948. Any order passed under Section 5-A was appealable under Section 5-B. The Custodian was authorised to take possession of such property under Section 6 and at that time, the Custodian was to publish in the locality a notice specifying the property of which he intended to take possession; and if the property was occupied by a person then the Custodian was required to give notice requiring such person to vacate the property. Thus, looking to the provisions contained in the Ordinance. 1948, if the property is of an evacuee, it automatically vested in the United State of Matsya. Under that Ordinance, in clause (b) of Section 2 thereof. ` Evacuee" means a person ordinarily resident in or owning property or carrying on business within the territories comprised in the United State of Maisya who on account of civil disturbances or the fear of such disturbances or the partition of the country. (i) leaves or has since the 1st day of March, 1947, left the said territories for a place outside India or, (ii) cannot personally occupy or supervise his property or business. Learned counsel for the respondent though contended that the property in question vested in the Custodian on the promulgation of the Ordinance, 1948, but I am of the view that no evidence has been brought on record so as to show that the person concerned migrated to Pakistan before coming into force of the Act. 1950. In these circumstances, it cannot be said that the property in question in the United State of Matsya by virtue of the said Ordinance, 1948, inasmuch as there is also no such findings of the court, below. 12. Learned counsel for the respondent then drew my attention to Exhibits A. 1 to A,5. Ex. A-1 is a copy of application dated 14 9.1964 submitted by Salla (defendant No 3) and other heirs of Chand Khan. Similar is the application dated 10.9.64 (Ex. A. 2) with similar contents. 12. Learned counsel for the respondent then drew my attention to Exhibits A. 1 to A,5. Ex. A-1 is a copy of application dated 14 9.1964 submitted by Salla (defendant No 3) and other heirs of Chand Khan. Similar is the application dated 10.9.64 (Ex. A. 2) with similar contents. In these applications, the applicants pleaded that the order declaring Chand Khan as an evacuee is patently wrong because, Chand Khan never migrated to Pakistan and he has died in India prior to Independence revolution, By these applications it is not clear as to when Chand Khan was declared as evacuee, more so. it is not obvious as to whether any order under Section 7 of the Act was passed or any notification was issued under this Section. 13. The same is the position of other documents (Ec. A. 3 to A 5) by which also, it cannot be assumed that the property in question vas ever declared or notified as evacuee under Section 7 of the Act. 14. In Custodian Evacuee Property, Punjab v. Iafram Begum (supra), the Supreme Court observed as under: "The Act is a complete code in itself in the matter of dealing with evacuee property. Section 7 of the Act gives powers to the Custodian to determine what properties are evacuee properties. Two questions will arise in every case where the Custodian his to declare whether a property is evacuee property. These two questions are (i) whether a particular person has or has not become an evacuee and (ii) whether the property in dispute belongs to him. Both these questions have to be decided under Section 7 of the Act by the Custodian. 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 question of title. 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. 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 Section 4, 28 and 46. But Section 41 or Section 28 cannot bar the jurisdiction of the High Court under Article 226 of the Constitution, for that is a power conferred on the High Court under the Constitution." As laid down in the cited decision (supra) Section 7 of the Act gives power to the Custodian to determine the evacuee property and what are evacuee properties and for this purpose, the Custodian has to decide two questions, (i) whether a particular person has or has not become an evacuee and (ii) whether the property in dispute belong, to him? If a decision is taken by the Custodian under Section 7 of the Act, then Section 46 of the Act is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under Section 7 of the Act, ss held by the Apex Court in Custodian Evacuee Property v. Jafram Begum (supra). In that case, the house in dispute was owned and possessed by one Murad Buz who died sometime in 1922. In 1947, the house in question was in possession of Mohd. Rafiq s/o Murad Bux and Smt. Jafram Begum widow of Murad Bux. Sometime after partition, Mohd. Rafiq migrated to Pakistan. Thereafter, a notice was issued under Section 7 of the Act to Dildar s/o Mohd. Rafiq to show cause as to why the house in dispute be not declared as evacuee property. Dildar appeared before the Dy. Custodian and admitted that his father has migrated to Pakistan on June 7, 1952. So. the house was declared to be evacuee property. In that case, no appeal was taken against the declaration of evacuee property which thus became final. Smt. Jafram Begum filed review petition and misc. application as against the aforesaid order of the Custodian dated 7 6.952 on the ground that the house in question was her property by virtue of a will made in her favour by Murad Bux in 1918. Smt. Jafram Begum filed review petition and misc. application as against the aforesaid order of the Custodian dated 7 6.952 on the ground that the house in question was her property by virtue of a will made in her favour by Murad Bux in 1918. The representation and the objections made by Jafram Begum were rejected by the Authorities under the Act. 1950 and thereafter, the suit in that case was filed which was dismissed on the ground that the Civil Court had no jurisdiction to decide the matter in the face of section 46 of the Act. The appeal filed against the dismissal of the suit was also dismissed. In second appeal it was held that the question a particular person had or had not become evacuee is a question which can only be determined by the Custodian and the Civil Court has nothing to do with it. On the second question, which evolved in that case (supra), as to whether the property in dispute belongs to the evacuee, the Court observed that this question might involve a simple question of fact or complicated question of law and that is question of title, and such a question of title could be reopened in the civil court and was finally to be determined by such Court. The Supreme Court in appeal by Special Leave, allowed the appeal by laying down the principles which I have quoted in earlier part of this judgment. 15. In Dr. Rajendra Prakash v. Gyan Chandra (supra), their Lordships of this Supreme Court observed as under : "S. 46 will not bar the jurisdiction of the civil court where the Custodian has never declared the property as evacuee property after taking proceedings under Section 7. The matter can be looked at from another angle also. Clauses (a), (c) and (d) of Section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication, the power of the Custodian-General or the Custodian to determine that question is subsisting. The matter can be looked at from another angle also. Clauses (a), (c) and (d) of Section 46 postulate that at the time when the question whether or not a property is evacuee property comes for adjudication, the power of the Custodian-General or the Custodian to determine that question is subsisting. That is to say, if at the point of time when the question arises, the power of the author ties constituted under the Act to adjudicate that question stands terminated or extinguished by the operation of Section 7A none of the clauses of 46 will bar the jurisdiction of the civil court to determine that question, which had not been decided by the Custodian during the period he had the power to determine it. "In the present case, no proceedings under section 7 to declare the property in question to be an evacuee property were taken by the Custodian against the person who remained in India at least till 1963. No notification under section 7(3) was published in Official Gazette declaring the property as evacuee property. Nor were any proceedings initiated under section 7 to declare it evacuee property pending on May 7, 1954 and the question of saving those proceedings under proviso to Section 7-A did not arise. Held that after May 7, 1954, the Custodian had no jurisdiction to declare the property in question as evacuee property. The jurisdiction of the civil courts to go into this question was thus not barred by anything in Sections 28 and 46." 16. Held that after May 7, 1954, the Custodian had no jurisdiction to declare the property in question as evacuee property. The jurisdiction of the civil courts to go into this question was thus not barred by anything in Sections 28 and 46." 16. Thus having benefited by the enlightment derived from the decisions (supra), I am of the view that where any property is declared as evacuee property under Section 7 of the Act, 1950, and the same is notified under this Section then the jurisdiction of the Civil Court is barred by Section 46 of the Act, 1950; but, where no proceedings under Section 7 of the Act, 1950, to declare the property to be evacuee property were taken by the Custodian against the person who remained in India and no notification under Section 7(3) has been published in Official Gazettee declaring the property as evacuee one, nor were any proceedings initiated under Section 7 to declare it as evacuee property pending on May 7, 1954, and still the property is claimed as evacuee then, in that situation, the Civil Court is competent to go into merits of the case because, after May, 1954, the Custodian had no jurisdiction to declare the property as evacuee property. And, therefore, the jurisdiction of the civil Court to go into these questions in the circumstances, enlighted above, would not be barred by anything contained in Sections 28 and 46 of the Act. 17. Applying the stated principles, it is now time to turn to the facts of the case. In the present case, the catalogue of the circumstances set out in the earlier part of the judgment strikes a note that an objection was taken to the maintainability of the suit on the ground that the property in question is an evacuee property, and in support of this contention, substantial evidence in the shape of a document was also adduced and further the courts-below discussed the oral as well as documentary evidence in order to conclude that the property in question is an evacuee property but, the courts-below failed to consider and then to conclude on the point as to whether the property in question was declared and notified as evacuee property under Section 7 of the Act, 1950. 18. 18. From a perusal of the judgments of the Courts-below, it is also not clear as to who was evacuee and when did he migrate to Pakistan and whether the property in question belonged to him. Without any such finding Section 46 of the Act, 1950 cannot be attracted and made applicable. 19. In my opinion, the features, enlighted above, cannot be eschewed as irrelevant for the proper and effective adjudication of the litigation which the trial Court has done in this case and therefore the entire gamut of facts and circumstances has to be adverted to on these questions. The trial Court would have framed a proper issue on the basis of the pleadings and documents brought on record. At the cost of repetition, I must reiterate that the issue framed by the trial Court was whether the suit property has been vested in Custodian and is the evacuee property, and if so, has the Court jurisdiction to entertain the suit. On this issue, the trial Court could have come to the conclusion definitely that the persons concerned migrated to Pakistan before the Act of 1950 came into force because automatic vesting was possible by virtue of the proactions of Ordinance, 19J8, referred to above, only when the person living in India if migrated to Pakistan before the Act of 1950 came into force. It is thus clear that the issue framed by the learned trial Court was not properly tried. 20. Here, I must emphasise that while dismissing the suit of the plaintiff on the basis of the decision of the Supreme Court in Custodian Evacuee Property, Punjab v. Jafram Begum (supra), the courts-blow utterly failed to apply the mind judiciously and they had to come to a definite finding that a decision was taken under Section 7 of the Act, 1950-that too, prior to coming into force of the Act, 1954 [Displaced Persons (Compensation and Rehabilitation) Act, 1954] and that the notification under Section / of the Act was also got published. I find no material so as to conclude this Section 7 of the Act, 1950 was complied with, here I must hasten to observe that I am not expressing any opinion over this feature on merits; and the present appeal can be allowed on this count, alone but, as I have already observed that in the instant case. I find no material so as to conclude this Section 7 of the Act, 1950 was complied with, here I must hasten to observe that I am not expressing any opinion over this feature on merits; and the present appeal can be allowed on this count, alone but, as I have already observed that in the instant case. neither the issue was properly framed nor any evidence was neither asked to adduce or adduced by the parties; in these circumstances, the defendant-respondent cannot be penalised in decreeing the suit of the plaintiff-appellant in toto. Under the circumstances, the findings recorded by the courts below must be unhesitatingly set aside. However, the case deserves to be remanded. And, in view of the circumstances narrated above, I think it fit that the parties specially the defendant- respondents should be given a chance to adduce the evidence to prove that an order under Section 7 of the Act, 1950 and notification in this regard was passed and issued or that the persons migrated prior to coming into force of the Act, I950 and further to point out the person who became evacuee and then to prove that such an evacuee was having any interest in the suit property or that the property in dispute belonged to him. 21. In view of the foregoing discussions, it will be just and proper to remand the case with the direction that the trial court shall record the evidence of the parties which can be adduced for the following issues (1) Whether Chand Khan or his heirs migrated to Pakistan and as a result of which, those became evacuees ? (2) Whether be property in dispute belonged to a person who became evacuee? (3) Whether the person had migrated to Pakistan prior to coming into force of the Act, 1950 ? (4) Whether any order and then a notification under Section 7 of the Act, 1950 was passed and published by the concerned authorities under the Act, 1950 ? 22. If the aforesaid questions Nos. 3 and 4 are decided against the defendant-respondents then the learned trial Court would be justifying in decreeing the suit of the plaintiff-appellant because neither before the first appellate court nor this Court the findings recorded by the trial Court with regard to issue Nos. 1 and 2 framed earlier by the trial Court apart from issue Nos. 3 and 4 are decided against the defendant-respondents then the learned trial Court would be justifying in decreeing the suit of the plaintiff-appellant because neither before the first appellate court nor this Court the findings recorded by the trial Court with regard to issue Nos. 1 and 2 framed earlier by the trial Court apart from issue Nos. 3 and 4, are challenged but at the same time. I clarify that it would be open to the defendant-respondents to challenge the findings of the trial Court on the questions formulated above by this Court, in accordance with law. Further I make it clear that I am not expressing any opinion over the features enlighted above on merits and it is for the learned trial Court to advert to them and adjudicate upon the questions formulated above afresh one way or the other, with to the above. 23. Now, I must conclude and in the result, I allow this appeal partly and set aside the findings of the courts-below recorded on issue No. 5 only and remand the case to the trial Court with a direction to decide the suit with advertence to the above, within earliest point of time not beyond a year. The parties are directed to bear their own costs looking to the facts and circumstances of the case.Appeal partly allowed. *******