1. This is an application by the Custodian of Evacuee Property against an order made by the Subordinate Judge, 1st class, Moga. There are seven respondents.

2. The facts are that on 14-10-1947, respondents Nos. 1 and 2 filed an application under Section 14, Arbitration Act, for filing of an award made between them and one Jodhi son of Chuhar. The award was made a rule of the Court on the same day and a decree passed in terms thereof. These terms were that respondents Nos. 1 and 2 were to recover art amount of Rs. 482/-by sale of a flour-mill engine which was situate in Ajitwal village in Moga Tehsil. Execution was taken out and the flour-mill was sold on 21-2-1948 and this sale was confirmed on 3-4-1948. Respondents Nos. 3 and 4 were the purchasers at the sale and they paid an amount of Rs 605/-. Later, these respondents sold the flour-mill to respondent No. 5 who subsequently sold it to respondents Nos. 6 and 7 for an amount of Rs. 4,900/-. On 6-10-1949 the Assistant Custodian, Ferozepur, filed an application under Section 15 of Ordinance No. IX of 1949 asserting that the engine was evacuee property and asking that the decree, sale and subsequent transfers set out above should be set aside and possession be given to the Custodian. The grounds of the application were that Jodhi was an evacuee, that the award of the 14-10-1947 was collusive and that the decree made thereon and subsequent transfers were ineffective against the Custodian.

3. The application was resisted on the ground that Jodhi was not an evacuee. It was also claimed that in any event respondents Nos. 3 and 4 were 'bona fide' purchasers for valuable consideration and that after the purchase improvements had been made and in any event compensation must be paid for those improvements.

4. The learned Subordinate Judge heard evidence on the issue whether Jodhi was or was not an evacuee and holding on this evidence that the Assistant Custodian had failed to prove that ha was an evacuee dismissed the petition.

5. It is claimed on behalf of the Custodian that the learned Subordinate Judge had no jurisdiction to decide the question whether or not Jodhi was an evacuee and therefore whether or not the property was evacuee property.

6. It is necessary to consider the history of legislation enacted to deal with the property of evacuees. It is enough to begin with the East Punjab Evacuees' (Administration of Property) Act, Act 14 of 1947, although there was an earlier Ordinance, namely the East Punjab Evacuee (Administration of Property) Ordinance, Ordinance 4 of 1947. The situation which occasioned this legislation was unprecedented. Much property abandoned by persons who left India after the 1st day of March 1947 clearly was evacuee property, but there was also much property abandoned, particularly movable property, the nature of which had been obscured by possession of it having been taken either with or without some ostensible claim to title by persons other than evacuees. It is not surprising that frequent amendments of the law dealing with the matter were found necessary.

Section 6 of the Act of 1947 gave power to all Custodians appointed under the Act by general or special order with reference to the location or description of a specific or any class of evacuee property to assume possession of or control over the property mentioned in the order which shall be. published in the official Gazette. From the date of such order the holder of such property, if any, was to be deemed to be holding it on behalf of the Custodian and was required to surrender possession on demand. On 4-5-1948, a notification dated the 1-5-1948 was published in the East Punjab Government Gazette which notification was as follows :

"In exercise of the powers vested under section 6(1) of the East Punjab Evacuee (Administration of Property) Act, 1947 as amended by the East Punjab Evacuees (Administration of Property) (Amendment) Act, 1948, the Custodian of Evacuees' Property, East Punjab, assumed possession of and control over all such other immovable and movable evacuee properties situate in the Province of East Punjab, of which possession or control had not already been taken over by him."

7. Section 4 of the Act of 1947 provided that all evacuee property situated within the Province vested in the Custodian for the purposes of the Act. Section 7 of the Act provided for inquiry into claims to evacuee property of which the Custodian had either taken possession or assumed control under Section 6. Such claims had to be made by application within thirty days from the date on which the possession of the property was taken or control of ft assumed.

8. The position in regard to property of which the Custodian had taken physical possession was simple. It was for any claimant to make an application under Section 7. If he failed he had a right under tho section to appeal to the District Judge and there was also provision for revision to the High Court. In respect of property which had been sufficiently described by general or special order made under Section 6 the position also was that it was Incumbent upon a claimant to make an application under Section 7. The notification published in the Gazette on 4-5-1948, however, did not attempt to particularise properties, & this notification cannot be construed as an assumption of possession of or control over all movable & immovable properties existing In the Punjab, requiring every owner of property to vindicate his title by application under Section 7. This notification and the vesting under Section 4 of the Act could do no more than ensure that the rights of the Custodian in property subsequently found to be evacuee property should not be affected by transfers made after the date of the coming into force of the Act. Section 17 of the Act barred the jurisdiction of the Civil Courts 'inter alia' to entertain any suit for declaration or for any other relief with regard to evacuee property. There were certain amendments to this Act made by the East Punjab Ordinance No. II of 1948, East Punjab Act 26 of 1948, East Punjab Ordinance No. 16 of 1943, East Punjab Ordinance No. 18, of 1948 and East Punjab Act XLIX of 1948, but the provisions of the Act I have set out were not materially affected.

9. An Ordinance, Ordinance No. 9 of 1949, entitled the East Punjab Evacuee Property (Administration) Ordinance, 1949 was promulgated on 10-7-1949 which repealed the Act of 1947 and the subsequent amending Acts and Ordinances. Section 5 of this Ordinance of 1949 continued the vesting in the Custodian of any property which had vested in the Custodian under the 1947 Act. Section 6 empowered the Custodian to notify either by publication in the official Gazette or otherwise evacuee properties which vested in him under the Ordinance, and upon such notification any person in possession was to be deemed to be hold-Ing it on behalf of the Custodian and was required to surrender possession on demand. Section 7 gave power to the Custodian to take forcible possession on refusal of demand made under section 6. Section 8 provided for claims in respect of any property notified under Section 6 or in respect of which a demand had been made or of which possession had been taken or control assumed by the Custodian.

Section 15 of the Ordinance was as follows:

"15. 'Exemption from attachment, sale, etc.' (1) No property which has vested in the Custodian shall be liable to attachment, distress or sale in execution of a decree or order of a Court or any other authority, and no injunction in respect of any such property shall be granted by any Court or other authority.

(2) Any attachment or injunction subsisting on the commencement of this Ordinance in respect of any, evacuee property which has vested in the Custodian shall cease to have effect on such commencement, and any transfer of such property under the orders of a Court or any other authority made alter 15th August, 1947, shall be set aside by such Court or authority on such terms as it thinks fit, provided an application is made in this behalf to such Court or authority by or at the instance of the Custodian within three months, from the commencement of this Ordinance."

10. Section 30 made certain provisions for appeal, review and revision from orders made by various grades of Custodians, and Section 31 barred the jurisdiction of the Civil Courts.

"(i) to entertain or adjudicate in any suit, application or other proceedings as to whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in any evacuee property; or

(ii) to question the legality of any action taken by the Custodian including an order of cancellation, termination or modification of a. lease, or an order demanding possession; or (iii) in respect of any matter which the Custodian is empowered to determine by or under this Ordinance or rules made thereunder."

11. On 18-10-1849 this Ordinance was superseded by a Central Ordinance, Ordinance No. 27 of 1949 entitled the Administration of Evacuee Property Ordinance, 1959. Section 7 of this Ordinance gave power to the Custodian after such inquiry as the circumstances of the case permitted and after notice to be given in a prescribed manner to the persons interested, to pass an order declaring any specific property to be evacuee property. Subsection (3) required the Custodian from time to time to notify, either by publication in the official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee properties under Sub-section (1). Section 8 of the Ordinance provided for the vesting in the Custodian of any property declared to be evacuee property under Section 7, Sub-section (2) of this section provided for the continuance of the vesting in the Custodian of any property which, had vested in the Custodian under any law repealed by the Ordinance. Section 9 gave power to the Custodian to take possession of evacuee-property which vested in him.

Section 17 provided that save as otherwise expressly provided in the Ordinance, no property which had vested in the Custodian shall be liable to attachment, distress or sale in execution of an order of a Court or of any other authority, and provided that on application made within three months from the commencement of the Ordinance any transfer of evacuee property under orders of a Court or any other authority made after 14-8-1947, shall be set aside. Section 24 provided for appeals and Section 26 for review or revision. Section 28 provided for finality of orders save as provided by Section 24 and barred the jurisdiction of the Civil Courts to call in question such orders in appeal or revision or in suit, application or execution proceeding. Section 43 barred the jurisdiction of the Civil Courts

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

(b) * * *

(c) * * *

(d) * * *

12. On 17-4-1950 the Administration of Evacuee-Property Act. Act 31 of 1950, received the assent of the President and was published in the Gazette of India on the following day. This Act repealed the Ordinance of 1949. This is the latest enactment on the subject of evacuee property. Section 7 of the Act which provides for notification after inquiry of evacuee property is for the present purposes practically, identical with Section 7 of the Ordinance. Clause (3) of the section provides that the Custodian shall, from time to time, notify, either by publication in the official Gazette or in such other manner as may be prescribed, all properties declared by him to be evacuee-properties under Sub-section (1). Section 8 is the vesting section providing for vesting in the Custodian of the property declared to be evacuee property under Section 7 from certain dates "depending upon the date when the evacuee left India or upon the date of notice issued under Section 7. Section 17 of the Act as it stood originally prohibited attachment, distress or sale in execution of an order of a Court or of any other authority of property vested in the Custodian, and Clause (2) provided that any attachment or injunction subsisting on the commencement of the Act in respect of any evacuee property which has vested in the Custodian shall cease to have effect on such commencement, and for setting aside of any transfer of evacuee property made under orders of a Court or any other authority after 1-3-1947, on application to such Court or authority by or at the instance of the Custodian within six months from the commencement of the Act.

This section has been amended by Act 22 of 1931, and Section 17 now reads as follows :

"17. Exemption of evacuee property from processes of court etc.-- (1) Save as otherwise expressly provided in this Act, no evacuee property which has vested or is deemed to have vested in the Custodian under the provisions of this Act shall, so long as it remains so vested, be liable to be proceeded against in any manner whatsoever in execution of any decree or order of any court or other authority, and any attachment or injunction or order for the appointment of a receiver in respect of any such property subsisting on the commencement of the Administration of Evacuee Property (Amendment) Act, 1951, shall cease to have effect on such commencement and shall be deemed to be void.

(2) Where, after the first day of March, 1947, any evacuee property which has vested in the Custodian or is deemed to have vested in the Custodian under the provisions of this Act has been sold in execution of any decree or order of any court or other authority, the sale shall be set aside if an application in that behalf has been made by the Custodian to such court or authority on or before the 17th day of October, 1950."

13. Section 25 of the present Act makes certain provisions for appeals and Section 26 makes provisions for review or revision from orders of the Custodian. Section 46 of the Act follows Section 43 of the 1949 Ordinance and bars the jurisdiction of the Courts inter alia 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.

14. 'In Civil Revn. No. 90 of 1951 (A),' decided by me on 23-4-1952 a point was raised that Section 46 of the Administration of Evacuee Property Act, 1950, did not bar the jurisdiction of the Civil Courts to decide the question whether a particular person was or was not an evacuee. This contention was repelled by me on the ground that as "evacuee property" is defined in Section 2 of the Act as "any property in which an evacuee has any right or interest (whether personally or as a trustee or as a beneficiary or in any other capacity)" the bar to the determination by the Civil Courts must bar the jurisdiction to determine whether a particular person was or was not an evacuee. This applies equally to cases falling under Ordinance No. 27 of 1949 or under East Punjab Ordinance No. IX of 1949. It seems to me not possible to accept that the Subordinate Judge in the present instance had jurisdiction to determine whether or not Jodhi was an evacuee and that he was in error in dismissing the Custodian's application on this ground.

15. There is, however, another aspect of the matter which has not been considered by the learned Subordinate Judge and which furnishes the main occasion for setting out the history of the law at some length as I have done. There is no suggestion of this particular property having been specified in any notification or order issued by the Custodian or any officer of his Department. I am not able to accept that the general proclamations issued together with the provisions for the vesting of evacuee property in the Custodian made in the various sections of the various Acts and Ordinances can be taken as determination that any particular property which the Custodian now chooses to name is evacuee property. The several enactments provided that while there should be no inquiry by the Civil Courts, there was to be inquiry by the Custodian in the case of specific items of property said to be evacuee property. Where the Custodian assumed physical possession or assumed control by express notification the inquiry of course was contingent upon objection raised by claimants. In those cases of property of which no possession was taken, no control assumed by express notification or no inquiry made such as that contemplated by Section 7 of the present Act or Section 7 of the Central Ordinance clearly there has been no determination that the particular property is evacuee property. The application under Section 17 of the present Act or Section 15 of the Ordinance of 1949 is an application to require the Court to set aside orders affecting evacuee property, and it must be a condition precedent to such application that there has been determination that the particular property is evacuee property. As the Custodian himself maintains, this determination cannot be made by the Court, and that determination therefore must have been made by the Custodian himself, under section 7 or similar provision of the earlier enactments.

In the present instance, there is no suggestion made by the Custodian of inquiry made or finding arrived at such finding of course being after notice required by section 7 or similar provision and carrying with it certain limited rights of appeal or revision. The Custodian in the present case approached the Court with what was not more than pleading or assertion that the property was evacuee property. He did not base his application upon a considered finding arrived at by a competent officer of his Department. In my opinion in these circumstances the application must have been dismissed. The Court to allow such application, although debarred from making determination itself, must be satisfied that the property has been determined to be evacuee property. This, the application of the Custodian did not establish, and the application therefore was not competent.

16. On these gdounds therefore I think the rule must be discharged in the present case and the application dismissed.

17. No order as to costs.