Case: Custodian of Evacuee Property Punjab &amp; Others Vs. Jafran Begum

Brief facts necessary in that connection are these. The house in dispute is situate in Malrrkotla and belonged to one Muradbux who died sometime in 1922. In 1947, the house was in possession of Muradbuxs son Mohd. Rafiq and Muradbuxs widow Jafram Begum. Sometime after partition, Mohd. Rafiq migrated to Pakistan. Thereafter notice was issued under Section 7 of the Act to Dildar son of Mohd. Rafiq to show cause why the house be not declared at evacuee property. No notice was however issued to respondent Jafram Begum. It seems that Dildar appeared before the Deputy Custodian and admitted that his father had migrated to Pakistan. So on June 7, 1952, the house was declared to be evacuee property. No appeal was taken against this order which thus became final. However on March 2, 1954, the respondent filed an application before the Custodian claiming that by virtue of a will made in her favour by Muradbux in 1918 he had bequeathed the house to her and therefore she was the owner of the entire property. On July 3, 1954, the Custodian held that under Mahomedan law a person could not will away more than one-third of his property and as it had not been proved that the house willed away by Muradbux was one-third of his entire property or less the will could not be acted upon. In consequence the application was dismissed. It seems that thereafter the respondent made some representations to the then Government of PEPSU but it is not known what happened thereto. On September 10, 1956, the respondent applied for review of the order of the Custodian dated July 3, 1954. That review application was dismissed on April 5, 1957 mainly on the ground that it was belated. The respondent then went in revision to the Deputy Custodian General but her revision was dismissed on September 27, 1957. Thereafter on December 3, 1958, the Deputy Custodian General suo motu reviewed the order of September 27, 1957 holding that the respondent as the widow was entitled to one-eighth share under Muhammadan law. He therefore held that only seven-eighth share of the house became evacuee property and one-eighth share of the respondent was not evacuee property.        2. In the meantime, the suit out of which the present appeal has arisen was filed by the respondent on March 3, 1958 She based her case on the will of Muradbux already referred to and prayed for a permanent injunction against the Custodian Evacuee Property Punjab and others barring them from evicting her from the house in dispute. The suit was dismissed on December 31, 1958 by the trial court holding that the civil court had no jurisdiction to decide the matter in the face of S. 46 of the Act The trial court decided the other issues also but we are not concerned with them as in the present appeal only the question of jurisdiction of civil courts to entertain the suit has been raised.        3. The respondent then went in appeal to the Additional District Judge. The Additional District Judge held relying on certain decisions of the Punjab High Court that civil courts had no jurisdiction to entertain a suit of this nature and therefore dismissed the appeal. He also decided other points but we are not concerned with them.        4. The respondent then went in second appeal to the High Court. The learned Single Judge who first heard the appeal referred it for decision to a large Bench. The matter then went before a Division Bench which noticed that there was some conflict between certain decisions of the Punjab High Court and therefore referred the matter to a larger Bench. In consequence a Bench of three Judges was constituted to decide whether civil courts had jurisdiction in such a case. The learned Judges were of the view that when a question arose whether any property was or was not evacuee property, two matters had to be decided namely (i) whether the particular person had or had not become evacuee and (ii) whether the property in dispute belonged to him. On the first question they were of the view that the matter could only be determined by the Custodian and civil courts had nothing to do with it. On the second question they were of the view that it might involve a simple question of fact or a complicated question of law i. e. a question of title. They finally decided that the question whether certain property was or was not evacuee property was determinable by the Custodian, but the determination of the Custodian on a question of title if such question arose was not final and the question of title could he reopened in the civil court and was to be finally determined by such court. They limited the above decision by observing that a mere assertion of claim to any property did not raise a question of title for such assertion might rest on a simple allegation of fact which could be finally determined by the Custodian and that the question whether in a particular case a question of title did or did not properly arise had to be decided on the facts of each case and no general rule about it could be usefully laid down. On this view of the law, they held that in the particular case before them a complicated question of law arose and therefore the suit was competent and the civil courts had jurisdiction to entertain it. Thereupon the appellant obtained special leave from this Court and that is how the matter has come before us.

Reasoning: We do not however propose to go into them in detail, for it appears to us that the view taken in some of them - conflicts with the view taken in othersThe definition also includes certain properties and- exclude certain other properties but we are not concerned with thatUnder S. 8 any property declared to be evacuee property under S. 7 vests in the Custodian from certain dates with which we are not concerned7. Section 28 thus clearly hers the jurisdiction of any court to entertain an original suit with respect to an order passed by the authorities mentioned thereinIt is true that the Act is concerned with the administration of evacuee property and a large number of its provisions deal with actual administration of such property. But before the authorities under the Act take on the duties of administration of evacuee property someone has to determine what properties are evacuee properties of which the authorities provided under the Act can take over administration. The Act itself provides a machinery for determining what properties are evacuee properties. Section 7 is that provision which gives power to the Custodian to determine what properties are evacuee properties. The Custodian determines that alter notice to persons interested and after such enquiry as the circumstances of the case permit. It is thereafter that the Custodian declares certain property to be evacuee property and on such declaration the property vests in the Custodian under S. 8. Then we have the provision of appeal under S. 24 and revision under S. 27 of the Act so that any person aggrieved by the order of the Custodian has two forums open to him to ventilate his grievance. Clearly the Custodian under S. 7 acts as a quasijudicial authority and so does the authority hearing appeals under S. 24 and the Custodian-General hearing revisions under S. 27Now there is nothing in S. 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 S. 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 S. 7. Nor do we find it possible to make a distinction between questions of feet and questions of law that may arise before the Custodian under S. 7. If he has the power to decide questions of fact, which the learned Judges in the order under appeal seem to concede we do not see why he should not have the power of deciding questions of law also. Further if the learned Judges in the order under appeal are correct in saying that if a question of title rests on a simple allegation of fact it can be finally determined by the Custodian, we cannot see on what reasoning it can be said that where a question of title depends on a question of law it cannot be finally decided under S. 7 by the Custodian. His power under S. 7 is to decide whether certain property is evacuee property or not and there is nothing in S. 7 which restricts that power to deciding only questions of fact. There can in our opinion be no escape from the conclusion that under S. 7 when deciding whether certain property is evacuee property or not, the Custodian has to decide all questions, whether of fact or law, whether simple or complicated, which arise therein That power cannot be denied on the ground that the Custodian, which term for these purposes includes the Deputy Custodian or the Assistant Custodian may not be an experienced judicial officer and therefore may not be in a position to decide questions of title. His decision is not final and is open to appeal under S. 24 and to revision under S. 27. If he makes a mistake the two higher authorities who, we are told, have always been recruited from experienced judicial officers can correct him.It is after the matter has been decided under S. 7 and S. 24 if an appeal is filed and under S. 27 if a revision is filed, that S. 28 gives finality to orders of the authorities mentioned therein and lays down that such orders shall not be called in question in any court by way of appeal or revision or in any original suit, application or execution proceeding. As we have already said, the legislature was not satisfied by merely conferring finality on such orders; it went further and expressly barred the jurisdiction of civil and revenue courts under S. 46 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. These words are very wide and clear and bar the courts from entertaining or adjudicating upon any such question. Where therefore the question whether certain properties are evacuee properties has been decided under S. 7 etc., whether that decision is based on issues of fact or issues of law, jurisdiction of courts is clearly barred under S. 46 (a). It is difficult to see how a distinction can be drawn between decisions under S. 7 based on questions of fact and decisions based on questions of law. The decision is made final whether based on issues of law or of fact by S. 28 and S. 46 bars the jurisdiction of civil and revenue courts in matters which are decided under Section 7 whatever may be the basis of decision, whether issues of fact or of law and whether simple or complicatedTherefore 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 S. 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, S. 46 is a complete bar to the jurisdiction of civil or revenue courts in any matter which can be decided under S. 7. This conclusion is reinforced by the provision contained in S. 4 (l) of the Act which provides that the Act overrides other laws and would thus override S. 9 of the Code of I Civil Procedure on a combined reading of l s. 4, 28 and 46. But as we have said already, S. 46 or S. 28 cannot bar the jurisdiction of the High Court under Art 226 of he Constitution, for that is a power conferred on the High Court under the ConstitutionIn any case in view of what we have said above these observations cannot be accepted AS laying down correct lawWe do not think it necessary to go into that question in the present appeal, for no such facts have been alleged in the present suit which would bring it within the ratio of the decision in Mask and Cos case, AIR 1940 PC 105  . Normally jurisdiction of civil Courts to entertain or adjudicate upon such question relating to evacuee property would be barred under S. 46This case therefore to some extent is in line with the view we have taken15. On careful consideration therefore of the authorities cited before us, we are of opinion that generally speaking the jurisdiction of the civil or revenue court is barred under S. 46 and no such court can entertain any suit or adjudicate upon any question whether a particular property or right to or interest therein is or is not evacuee property.