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PETITIONER: CUSTODIAN OF EVACUEE PROPERTY PUNJAB & ORS.

       Vs.

RESPONDENT: JAFRAN BEGUM

DATE OF JUDGMENT: 20/04/1967

BENCH: WANCHOO, K.N. (CJ) BENCH: WANCHOO, K.N. (CJ) BHARGAVA, VISHISHTHA MITTER, G.K.

CITATION:  1968 AIR  169            1967 SCR  (3) 736  CITATOR INFO :  R          1978 SC1217  (2,5,34,35)  R          1980 SC1206  (9,27,28)  F          1983 SC 259  (20)

ACT: Administration of Evacuee Property Act (31 of 1950), S.  46- Decision  by Custodian that property was  evacuee  property- Suit in Civil Court challenging decision-If maintainable.

HEADNOTE: A person who was in possession of a house in India, migrated to Pakistan.  Notice was issued to his son under s. 7 of the Administration  of  Evacuee Property Act,  1950,  and  after hearing  him the Deputy Custodian declared the house  to  be evacuee  property.  The respondent, who was the wife of  the evacuee and on whom the notice under s. 7 of the Act was not served,  started proceedings before the Custodian,  claiming that the owner of the house had executed a will  bequeathing the  property  to  her  and so the  property  could  not  be declared  evacuee  property.   When she  failed  before  the authorities  constituted under the Act, she filed a suit  in the civil court basing her case on the will and prayed for a permanent  injunction restraining the authorities under  the Act from evicting her from the house. On  the  question whether the suit in the  civil  court  was maintainable, the High Court held that the question  whether a  certain  person  had or had not  become  an  evacuee  was determinable only by the authorities under the Act, but  the determination  of a complicated question of law relating  to title by such authorities, if such a question arose, was not final  and  could be reopened in the civil court;  that  the suit  in  the  present case did raise such  a  question  and therefore, the civil court had jurisdiction to entertain it. In appeal to this Court, HELD  :  Two questions will arise in every  case  where  the authority  has  to declare under s. 7 of the Act  whether  a property   is  evacuee  property,  namely,  (i)  whether   a particular person has or has not become an evacuee, and (ii) whether  the property in dispute belongs to him.   There  is nothing in the section which shows that the authority  under the Act (being a quasi judicial authority) cannot enter into

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all   questions,   whether  of  fact  or  law,   simple   or complicated, in deciding whether certain property belongs to an evacuee; nor does his jurisdiction depend upon a  correct finding on a collateral fact.  The power to decide all these questions  could  not  be denied on  the  ground  that  ’the authority  under  s. 7 may not be  an  experienced  judicial officer,  because, his decision is not final and is open  to appeal  under  s.  24  and  to  revision  under  s.  27   by authorities  who are experienced judicial officers.   Having thus  provided a complete machinery for adjudication of  all claims with respect to evacuee property, under ss. 7, 24 and 27,  the Act, by s. 28, gives finality to the order  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.  The Legislature has gone further  and expressly  barred the jurisdiction of the 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.   Further,  s. 4(1) of the Act provides that                             737 the Act overrides other laws and would thus override s. 9 of the Civil Procedure Code.  In these circumstances, s. 46  is a  complete  bar to the jurisdiction of the Civil  Court  to entertain  the suit or adjudicate upon the question  whether the  property in dispute or right to or interest therein  is or  is not evacuee property.  But ss. 28 and 46  cannot  bar the jurisdiction of the High Court under Art. 226 for,  that is  a power conferred by the Constitution. [740 G-E; 742  A, E, F-G; 743 A-B, D-G, 744 A, B-F] S.   M. Zaki v. The State of Bihar, A.I.R. 1953 Pat. 112 and Khalil’  Ahmad Khan v. Malka Meher Nigar Begum, A.I.R.  All. 362, approved. Observation  at  page  934 in  Namazi  v.  Deputy  Custodian Evacuee Property, A.I.R. 1951 Mad. 930, disapproved. [The question whether the civil courts have jurisdiction  to examine into cases where the provisions of the Act have  not been  complied with or the statutory tribunal has not  acted in  conformity with the fundamental principles  of  judicial procedure, not decided.] [745 D-E] Abdul  Majid  Haji Mohmed v. P. R. Nayak, A.I.R.  1950  Bom. 440,. referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 772 of 1964. Appeal  by special leave from the judgment and  order  dated May  28,  1962 of the Punjab High Court  in  Regular  Second Appeal No. 1819 of 1959. K. S. Chawla and R. N. Sachthey, for the appellants. The respondent did not appear. The Judgment of the Court was delivered by Wanchoo, C.J. In this appeal by special leave the only ques- tion  that  arises  is the interpretation of S.  46  of  the Administration  of  Evacuee Property Act, No.  31  of  1950, (hereinafter referred to as the Act).  Brief facts necessary in  that  connection  axe these.  The house  in  dispute  is situate in Malerkotla and belonged to one Muradbux who  died Sometime  in 1922.  In 1947, the house was in possession  of Muradbux’s  son, Mohd.  Rafiq and Muradbux’s  widow,  Jafran Begum.  Sometime after partition.  Mohd.  Rafiq migrated  to Pakistan.   Thereafter notice was issued under S. 7  of  the Act  to  Dildar son of Mohd.  Rafiq to show  cause  why  the

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house  be not declared as evacuee property.  No  notice  was however  issued to respondent Jafran 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 738 held that under Mohammedan 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 Mohammedan law.  He  therefore  held that  only seven-eighths share of the house  became  evacuee property  and  one-eighth share of the  respondent  was  not evacuee property. 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 jurisdic- tion of civil courts to entertain the suit has been raised. 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. 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 larger 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 73 9 (ii)whether the property in dispute belonged to him.  On the first  question they were of the view that the matter  could

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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 person  was  or  was not evacuee  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 be reopened in the- civil  court and was to be finally determined by such court.  The 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. There  have been a large number of cases in the Punjab  High Court  on  this question.  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 others.  That is the reason why a Bench of three Judges  was constituted  to go into the matter and we have  already  set out  their  decision.’ These cases are : F. Sahib  Dayal  v. Assistant Custodian of Evacuee Property(2); Firm  Pariteshah Sadashiv  v. Assistant Custodian Evacuee Property (2);  Duni Chand  v.  Ibrahim (s); Kailash Chand v. A  ddl.   Custodian General  (4)  ;  Narendra  Kumar  v.  Custodian  General(5); Custodian  General v. Harnam Singh (6) ; Ram Gopal v.  Banta Singh(7);  Parkash Chand v. Custodian  Evacuee  Property(8); Gurparshad  v.  Asst.  Custodian General(9);  and  Custodian General in     the  High Court.  A distinction must be  made between jurisdiction of  the  High Court under Art.  226  of the  Constitution  and jurisdiction of  civil  courts  about entertaining   civil  suits  in  matters,  of,  this   kind. Whatever  may  be the interpretation of s. 46  to  which  we shall,  address  ourselves presently, the  jurisdiction.  of the,  High Court under Art. 226 of the Constitution  is  not and cannot be (1)  (1952) 54 Punj.  L.R. 318. (3)  (1954) 56 Punj.  L.R. 257. (5)  A.I.R. 1956 Punj. 163. (7)  (1958) 60 Punj L.R. 307. (9)  (1959) 61 Punj.  L.R. 137. (2)  (1952) 54 Punj.  L. R. 468. (4)  (1955) 57 Punj.  L.R. 440. (6)  A.I.R. 1957 Punj. 58. (8)  (1958) 60 Punj.  L.R. 592. (In) (1959) 61 Punj.  L.R. 915. 740 affected  thereby.  Other cases arose out of suits  and  two views seem to have prevailed in the High Court, one  holding that  suits of this nature were barred while the other  view was  that where a question of title arose,  jurisdiction  of civil courts was not barred under S. 46 of the Act. It is necessary to consider the scheme of the Act before  we actually  decide the question posed before us.  As  is  well known  the  Act had to be passed in order to deal  with  the enormous  problem which arose on the division of the  Punjab

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and  large scale migration that took place from one side  of the  Punjab as it was before 1947 to the other side.   Large numbers of Muslims migrated to that part of the Punjab which is now in Pakistan leaving their properties in that part  of the Punjab which is now in India.  It was to deal with  this problem  that  the Act was passed, though we  may  add  that there were earlier laws dealing with the same matter,  which were all repealed by the Act, wherever it was extended.  The Act  defines  "an  evacuee"  and  also  "evacuee  property". "Evacuee property" is defined as meaning any property of  an evacuee whether held by him as owner or as a trustee or as a beneficiary  or as a tenant or in any other  capacity.   The definition  also  includes certain properties  and  excludes certain  other  properties, but we are  not  concerned  with that.  Section 4 of the Act which is important provides that "the provisions of this Act and of the rules and orders made thereunder   shall  have  effect  notwithstanding   anything inconsistent  therewith contained in any other law  for  the time  being in force or in any instrument having  effect  by virtue  of  any  such law".  Sections 5 and  6  provide  for appointment of Custodian-General, Deputy Custodian  General, and   Assistant  Custodian-General,  Custodian,   Additional Custodian,  Deputy Custodian and Assistant  Custodian  whose duty  it  is to administer the Act.  Se ion 7  empowers  the Custodian  to  give  notice, where he  is  of  opinion  that certain   property  is  evacuee  property,  to  the   person interested  and after holding such inquiry into the  matter as  the  circumstances  of the case permit,  pass  an  order declaring  any such property to be evacuee property.  It  is clear  in  view of the definition of "evacuee  property"  to which  we  have already referred, that  two  questions  will arise  in  every  case where the Custodian  has  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 s.  7 of  the  Act  by the Custodian.  Under  S.  8  any  property declared  to  be evacuee property under s. 7  vests  in  the Custodian from certain dates with which we are not  concern- ed.  Section  9  gives  power  to  the  Custodian  to   take possession  of evacuee property vested in him.   Section  10 provides  for powers and duties of the Custodian  generally. Then follow certain sec- 741 tions  which  give  special powers  to  the  Custodian  with respect  to  the management of the property to which  it  is unnecessary  to refer.  Section 16 provides for  restoration of  evacuee property by the Central Government.  Section  24 inter  alia gives a right to a person aggrieved by an  order made  under  S. 7 by the Custodian to  appeal.   Section  27 gives  power of revision to the Custodian-General either  on his own motion or on application made to him to call for the record of, any proceeding in order, to satisfy himself as to the legality or propriety of any order passed therein and to pass such order in relation thereto as he thinks fit.   Sec- tion 28 which is also important reads thus :               "Save as otherwise expressly provided in  this               Chapter  every  order made by  the  Custodian-               General,   Custodian,  Additional   Custodian,               Authorised Deputy Custodian, Deputy  Custodian               or  Assistant  Custodian shall  be  final  and               shall  not be called in question in any  court               by  way  of  appeal  or  revision  or  in  any               original   suit,  application   or   execution               proceeding."

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Section  28 thus clearly bars the jurisdiction of any  court to  entertain  an  original suit with respect  to  an  order passed by the authorities mentioned therein. Section  46 with which we are particularly concerned  is  in these terms :               "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 property; or               (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 determined A  bare reading of s. 46 shows how widely it is  worded  and how,  clearly it bars the jurisdiction of civil and  revenue courts  in matters specified ’therein.  A perusal  of  these provisions  in our opinion shows that the Act is a  complete code  in  itself  in  the matter  of  dealing  with  evacuee property.  As observed by this Court in Ram Gopal Reddy  v. Additional  Custodian(1), "the Act thus provides a  complete machinery  for  a person interested in any property  to  put forward his claims before the authorities competent to  deal with the question and to go in appeal and (1)  [1966] 3 S.C.R. 214. 742 in  revision  if  the  person  interested  feels  aggrieved. Having provided this complete machinery for adjudication  of all claims with respect to evacuee property, the Act, by  S. 46,  bars  the jurisdiction of civil or  revenue  courts  to entertain  or  adjudicate  upon  any  question  whether  any property  or any night to or interest in any property is  or is  not  evacuee  property".  It is true  that  the  Act  is concerned with the administration of evacuee property and  a large  number  of  its  provisions  deal  with  actual   ad- ministration  of such property.  But before the  authorities under  the  Act  take on the  duties  of  administration  of evacuee  property some one 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  after 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. 27.  Thus  all persons interested get a hearing under S. 7 and all  persons aggrieved  have a right of appeal under s. 24 and can go  in revision under s. 27.  That is why s. 28 provides that every order  made  by the authorities indicated therein  shall  be final and shall not to be called in question in any court by way of appeal, revision or in any original suit, application

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or  execution proceeding.  The legislature was  not  however satisfied  merely  by giving finality to the orders  of  the authorities   mentioned  in  S.  28;  it  went  on  to   bar specifically the jurisdiction of civil and revenue courts in three  matters indicated in s. 46.  Under cl. (a) of S.  46, jurisdiction of 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. Under  s. 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 S. 7 which shows that 74 3 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  fact  and  questions of law that may  arise  before  the Custodian  under s. 7. If he has the power to  decide  ques- tions  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

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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, the  jurisdiction L9 Sup. Cl/67-4 744 tion  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 decis ions 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 s. 7 whatever may  be  the basis  of  decision, whether issues of fact or  of  law  and whether simple or complicated. It  may be added that the only question to be decided  under s. 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  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 (1) of the Act  which  provides that the Act overrides other laws and would thus override s. 9  of the Code of Civil Procedure on a combined  reading  of ss. 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 the Constitution, for that is a power  conferred  on the High Court under the Constitution. It now remains to refer to certain cases of other courts  in this connection.  In M. S. Namazi v. Deputy Custodian of  E. P.(1),  the  Madras High Court was  mainly  considering  the constitutional  validity  of the Act.  At p.  934,  however, Rajmannar C. J. made the following observations               "There  is however one thing about which I  am               not  quite  clear.   The  Ordinance  no  doubt               declares the order of the Custodian. declaring               any property to be evacuee property as  final.               That  might be so in one sense, i.e.,  if  any               property  belongs  to a person  who  has  been               declared  to be an evacuee within the  meaning               of  the definition in the Ordinance, then  the               Custodian’s  order would be final.  But,  does               the  finality amount to an I  adjudication  on               title in case there is any dispute?  Take  for               instance the case where a property is declared               to be evacuee property on the assumption  that               it  be.longs to A who is an evacuee.  Does  it               mean that some (1) A.I.R. 1951 Mad. 930. 7 4 5               one else cannot say that the property  really.               does not belong to the evacuee but, belongs to               himself who is not an evacuee?  I am  inclined

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             to  hold that the order. of the  Custodian  or               the  notification under s. 7 of the  Ordinance               is not final, in case of disputed title." These  observations themselves show that the  learned  Chief Justice was not finally deciding the matter for the question did not directly arise before him.  He does not seem to have considered the matter in the light of S. 4 and s. 46 of  the Act.   In any case in view of what we have said above  these observations cannot be accepted as laying down correct law. In  Abdul  Majid  Haji Mohmed v. P. R.  Nayak,(1)  the  main question  for  consideration was  again  the  constitutional validity of the Act.  That was a case which arose on a  writ petition.   As  we have already said, S. 46 cannot  bar  the jurisdiction  of the High Court under Art. 226.  But  during the  course  of the judgment, Chagla C. J. referred  to  the decision  of the Privy Council in The Secretary of State  v. Mask  &  Co.(2) and observed that it was well  settled  that "even  if jurisdiction of courts is excluded,  civil  courts have jurisdiction to examine into cases where the provisions of  the  Act have not been complied with  or  the  statutory tribunal  has not acted in conformity with  the  fundamental principles  of  judicial  procedure".  We 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 & Co.’s case(1).  Normally jurisdiction of civil courts to  entertain or adjudicate upon such question  relating  to evacuee  property would be barred under s. 46; the  question whether in some extreme circumstances civil courts may  have jurisdiction inspite of S. 46 need not be decided just  now. However we may add that in Firm of Illuri Subbayya Chetty v. State  of  Andhra Pradesh(3) this Court observed at  p.  763 that  the observations in Mask & Co.’s case(2) were in  some respects too widely stated. The  next case to which reference may be made is S. M.  Zaki v. The State of Bihar(4). There the question was whether the property  was  evacuee and the court held that the  Act  had provided adequate remedies and that s. 46 must be  construed to  mean that the jurisdiction of a civil or  revenue  court was  ousted even if the Custodian had wrongly  decided  that any  property  was  an evacuee  property.   The  distinction between those cases where a collateral fact is to be decided before   a   tribunal  of   limited   jurisdiction   assumes jurisdiction  and  those  cases where the  tribunal  has  to decide the whole matter itself was refered to and (1)  A.I.R. 1951 Bom. 440. (3)  [1964] 1 S.C.R. 752. (2) A.I.R. 194) P.C. 105. (4) A.I.R. 1953 Pat. 112. 746 Ramaswami  J. (as he then was) rightly held that under S.  7 the  whole  matter has to be decided by  the  Custodian  and there was no question of the decision of any collateral fact as  a condition precedent to assumption of  jurisdiction  by the Custodian. The  last  case  to which reference may be  made  is  Khalil Ahamad  Khan  v. Malka Mehar Nigar Begum(1).   The  question there was somewhat different, namely, whether S. 46 bars the jurisdiction  of the civil court in a pending  matter.   The majority of the Judges in that case observed that in a  case where a matter had been adjudicated upon in accordance  with the  provisions  of  the Act it might not  be  possible  for courts to interfere by reason of the provisions of s. 46  of the Act.  This case therefore to some extent is in line with the view we have taken.

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On  a  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.   We therefore allow the appeal and hold  that  in the view we have taken the suit was not maintainable in  the civil  court.   The matter will now go back  to  the  Single Judge of the High Court to pass order in conformity with the view we have expressed.  As- the respondent has not appeared in this Court we pass no order as to costs. V.P.S.                                    Appeal allowed. (1) A.I.R. 1964 All. 362, 747