Holding

A civil court may determine whether a property is evacuee property when the Custodian has never declared it under Section 7, and consequently the sale under the 1954 Act is void.

Summary

Dr. Rajendra Prakash Sharma claimed title to a house he purchased under the Displaced Persons (Compensation and Rehabilitation) Act, 1954, asserting that it had been declared evacuee property and that the sale was valid. The respondents argued that no declaration under Section 7 of the Administration of Evacuee Property Act, 1950 had ever been made, rendering the sale void. The Supreme Court held that Section 46 of the 1950 Act does not bar civil courts from adjudicating the evacuee‑property question when the Custodian never made a declaration under Section 7, and that the prerequisite for acquisition and sale under the 1954 Act was absent. Consequently, the sale was a nullity and the appellant was not entitled to title. The appeal was dismissed with costs.

Issues considered

Whether Section 46 of the Administration of Evacuee Property Act, 1950 bars a civil court's jurisdiction to determine if a property is evacuee property when no declaration under Section 7 has been made.
Whether the sale of the house under Section 20 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is valid in the absence of a prior declaration of the property as evacuee property under the 1950 Act.
Whether Section 27 of the 1954 Act precludes a civil court from questioning the validity of the sale order.
Whether the property vested in the Custodian under the 1950 Act given the owner's residence in India until 1963 and the effect of Section 7A.
Whether the respondents' remedy is limited to claiming compensation under the 1954 Act.

Legislation cited

Administration of Evacuee Property Act, 1950s. 28, s. 2(d), s. 46, s. 7, s. 7A, s. 8
Displaced Persons (Compensation and Rehabilitation) Act, 1954s. 12, s. 20, s. 22, s. 23, s. 24, s. 27, s. 2(c)
U.P. Ordinance No. 1 of 1949

Subjects

evacuee propertycivil court jurisdictionSection 46Section 7 declarationSection 20 saleCompensation poolSection 12 acquisitionSection 27 finalityU.P. Ordinance 1949property title

Judgment

207

DR. RAJENDRA PRAKASH SHARMA A
v.
GYAN CHANDRA & ORS.
March 27, 1980
[R. S. SARKARIA AND R. S. PATHAK. JJ.]
B
Administration of Evacuee Property Act 1950 (31 of 1950). Sections
2(d), 7, 7A 8, 28 a11d 46 & Displaced Persom (Compe11Sation a11d Rehabi-
litation) Act 1954 (44 of 1954) Sections 2(c), 22, 23, 24 a11d 27 Property
acquired undier section 12 and auctioned under section 20 of 1954 Act-Pro-
perty not declared by Custodian as evacuee property under section 7 of 1950
Act-Jurisdiction of Civil Court to determine question whether property declar-
ed evacuee property-Section 46 of 1950 Act whether a bar-Section 27 of
1954 Act-Whether applicable.
c
The appellant field a suit in the civil ccurt alleging that the house in dis-
pute was owned by one Abdul Rashid and that he had let out the house to
his father who was paying rent to him, that Abdul Rashid had migrated to
Pakistan and the house was declared evacuee property. Later, the house
was put to auction on January 29, 1969 under section 20 of the Displaced
Persons (Compensation a.nd Rehabilitation) Act, 1954, was purchased by him D
anti that the sale certificate was also issued. He further pleaded that the respon-
dents-defendants had also filed suit No. 67 of 1970 for ejectment and arrears
of rent against his father, that the suit was decreed on May 10, 1971, and
j that in pursuance of that decree they tried to dispossess him, and as he was
not impleaded in the ejectment suit, he was not bound by that decree. The
appellant claimed a declaration of his titlC to the property and prayed for
perpetual injunction restraining the defendants-respondents from dispossessing E
him in execution of the ejectment decree.
The respondents resisted the suit, denied that the property in dispute was
ever declared evacuee property or that it was ever acquired under the provi-
sions of the Act of 1954, and asserted that the appropriate authorities never
passed any order under section 7 of the Administration of Evacuee Property
Act, 1950 declaring the property to be evacuee property. The 1st defendant F
further pleaded that Abdul Rashid had only ! /6th share in the house in
question which was purchased by his father and therefore the respondents are
exclusive owners of the House. The said Abdul Rashid had migrated to
Pakistan in the year 1967 long after he had transferred his interest and share
in the house in question and that the father of the appellant had in collusion
with the Custodian Department prepared fictitious proceedings relating to the
sale of the house in question, that the Custodian Department had no juris- G
diction to declare the property as evacuee property, much less could they
sell it under the Act of 1954, and that the auction if any held, was a nullity
having been brought about by misrepresentation and fraud.
The trial court held that Abdul Rashid was not the owner of the house
in question, that the entire proceedings taken by the Custodian Department
were illegal and without jurisdiction and the pla.intiff did not acquire any title
by virtue of the sale held by the Authorities under the Displaced Persons H
(Compensation and Rehabilitation) Act of 1954, and accordingly dismissed
the suit.
208 SUPREME COURT REPORTS ,[1980] 3 S.C.R.

.A On appeal, the Additional District Judge, affirmed the findings of the trial
court and held that the jurisdiction of the Civil Court was not barred by
section 46 of the Administration of Evacuee Property Act, 1950 and that it
could go into the question whether or not the matter had been adjudicated
•
upon by the authorities under that Act. It found that no inquiry, as con·
templated under section 7 of the 1950 Act was held and no Notification
was issued by the· Authorities under that Act, declaring the suit property to
B be evacuee property. It further held that Abdul Rashid had nG title or
interest, whate,•er, in the house in question after lluly 31, 1953, when, in
accordance with the decree of the Civil Court in partition Suit No. 289 of
1953, Phool Chand had deposited the value of I/6th share of Abdul Rashid
in this property.
The High Court dismissed the Second Appeal preferred by the appellant
affirming the concurrent findings of the conrt below. It also held that Abdul
c Rashid was in India much after the repeal of UP Ordinance No. I of 1949
and consequently there was no question of the property vesting automatically
in the Custodian under the aforesaid Ordinance.
In the appeal to this court it was contended on behalf of the appellants :
(1) in view of th'e decision in Custodian of Evacuee Property, Punjab & Ors.
v. Jatran Begum [1967] 3 SCR 736 and section ~6 of the 1950 Act, the
D Civil Court had no jurisdiction to adjudicate upon the question whether the
suit property or any right or interest therein is or is not evacuee property,
(2) the sale of the suit property had been effected in favour of the appellant
under section 20 of the 1954, Act, after it had been acquired by the Central
Government under section 12 of that Act, free from all encumberances and
formed part of the compensation pool, (3) the order of its acquistion passed
under section 12, and its sale under section 20 of the 1954 Act had become
E final and conclusive, the respondents could not be allowed to go behind
those orders and question their finality on the ground that the property has
never been evacuee property vesting in the Custodian, because section 27 of
the 1954 Act bars the jurisdiction of the Civil Court to go into this ques-
tion.
Dismissing the appeal,
HEW : I (i) Section 46 will not bar the jurisdiction of the Civil Court
F
where the Custodian has never declared the property as evacuee property
after taking proceedings under section 7 of the 1950 Act. [219 CJ
Custodian of Evacuee Property, Punjab & Ors. v. Jafran Begum [1967]
3 S.C.R. 736 referred to and explained.
(ii) Form a conjoint reading of section 7 & 8 of the 1950 Act it is, clear
that the making of a declaration after inquiry under section 7 that the pro-
G perty is 'evacuee property' is a sine qua non for giving the Custodian domin-
ion over the property. If no proceeding is taken under section 7, there can
be no vesting of the property in the Custodian. [216 Cl
Fazalbhoy v. Official, Trustee of Maharashtra [1979] 2 S.C.R. 699 at p. 712
referred to.
In the instant case Abdul Rashid was throughout residing in India and
R personally managing the suit property and collecting its rent till 1963. He
migrated or went away from India for good some time in 1963 or thereafter.
Therefore, if the Custodian had not taken any proceedings under section 7
R. P. SHARMA v. G. CHANDRA & ORS_. 209

of the 1950 Act to declare the suit property as evacuee property before the A
7th day of May, 1954, and no such proceedings were pending on May 7, 1954,
• the property of Abdul Rashid could not be declared evacuee property under
the Act, the power of the Custodian to do so having been terminated by section
7A. [217 B-CJ
(iii) It was for the plaintiff~appellant to show by producing relevant
notifications or other documentary evidence that the Custodian had taken
proceedings and declared the suit property to be evacuee property in a.ccor· B
dance with the provisions of section 7 or that such proceedings had been
initiated earlier and were pending on the 7th day of May, 1954. Despite
ample opportunity granted to the plaintiff he did not produce any such docu·
mentary evidence in the courts below. All that he showed was that Rehabi·
litation Authorities bad purporting to act under the 1954 Act sold the suit
property to him and issued the sale certificate in his favour on April 1st,
1969. [217 DJ c
(iv) 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 under this
Act of 1950 to determine the question is subsisting. That is to say, if at
the point of time when the question arises, the power of the authorities cons·
tituted under this Act to adjudicate that question stands terminated or extin· D
guished by the operation of section 7A of the 19 54 Act, none of the clauses
(a), (c) and (d) of section 46 will bar the jurisdiction of the Civil Court
to determine that question, \Vhich had not been decided by the Custodian
} during the period he had the power to determine it. l219 F-G]
(v) Section 28 bas no application to the facts of the instant case because
no order made by any of the authorities mentioned in that section is being
called in question. Section 46, also, does not come in the way because no
E
proceedings under section 7 of the 1950. Act to declare the suit house a.s
evacuee property can be taken by the Custodian against Abdul Rashid. [219 H·
220 A]
(vi) No notification under Sub-section (3) of section 7 published in the
Official Gazette has been placed on the record. Nor was it sho\vn that any
proceedings initiated under section 7 of the Act to declare it evacuee property F
were pending on May 7, 1954, and the question of saving those proceedings
under the Proviso to section 7A does not arise. I220 B]
In the instant case Qazi Abdul Rashid was throughout resident of India
till 1963 and was personally managing the suit house and collecting rent of
it from the tenant. After May 7, 1954, therefore, the Custodian had no
jurisdiction under the 1950 Act to declare the suit house as evacuee property. G
The jurisdiction of the Courts below to go into this question was thus not
barred by anything in sections 28 and 46 of the 1950 Act. [220 CJ

2(i) Section 20 of the 1954 Act confers powers on the managing officer
to transfer any property out of the compensation pool by sale or in any other
manner indicated in clauses (b) to (e) of that Section. The necessa.-y pre-
·requisite for sale is that the prope1ty must have been declared under section 7 of
the 1950 Act to be evacuee property by the Custodian or it must be evacuee H
,property under the deeming provisions of any law which may be applicable to
1he case of the evacuee. In other words, only that property could be acquired
210 SUPREME COURT REPORTS [1980] 3 S.C.R.

A under section 12 and form part of the oompensation pool which satisfies the
definition of "evacuee property'" given in section 2(c) of the 1954 Act. If the
property was never evacuee property, as defined in section 2 (c), it does not
legally form part of the compensation pool and, therefore, cannot be disposed
of under section 20 or the Rules framed under this~ statue. [220 C, 221 H~
222 BJ
(ii) The necessary prerequisite for acquiring property under section 12 is
B that it must be 'evacuee property' as defined in section 2(c) of the 1954
Act. In the absence of this essential prerequisite the Central Government is
not competent to acquire, that property under this section for throwing it
into the compensation pool. This prerequisite or condition precedent, was
lacking in the instant case. No notification published in the Official Gazette
either undef sub-section ( 1) or sub-section (3) of section 12 appears to have
been brought on the record of this case, nor attention dra·wn to any such.·
c notifications. [221 F-GJ
3. Section 27 of the 1954 Act is not attracted because the plaintiff, who
filed the original suit and is now appellant in this appeal, is not questioning
the finality of the order of the sale alleged to have been made by the manag..
ing officer. It is the defendant-respondents who are resisting the plaintiff's
claim on the ground that the sale is a nullity. It could not be made under
D this Act of 1954 for the reason that it was never declared evacuee property
under section 7 of the Act and thus never formed part of the compensation
pool. The vlords "under this Act'' occuring in section 27 are significant.
They sho.w that those orders which are not made by any officer or authority
in accordance with the provisions of this Act, but outside the provisions of
this Act in excess of jurisdiction, can be. called in question in the civil court.
The language of section 27 is not as wide as that of section 46 of the 1950
E Act. [222 G-223 A]
4. As Qazi Abdul Rashid remta·ined in India continuously upto 1963, no
question of automatic vesting under the U.P. Ordinance No. 1 of 1949 could
arise. That ordinance was not applicable to him at all. [214 H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 424 of 1979-1
F Appeal by Special Leave from the Judgmeut and Order dated
23-8-1978 of the Allahabad High Court in Second Appeal No. 34/78.
D. R. Gupta and B. V. Desai for the Appellant.
B. R. Agarwala for the Respondents.
The Judgment of the Court was delivered by
G SARKARIA, J.-This appeal by special leave is directed against a
judgment, dated August 23, 1978, whereby a learned Single Judge of
the Allahabad High Court, dismissed the appeal of the appellant
herein. It arises out of these circumstances.
The plaintiff, Dr. Rajendra Prakash Sharma, is the appellant
before us. He filed a suit in the court of the Civil Judge, Buland-
H shahar, alleging that the house in dispute was owned by one Qazi
Abdul Rashid, son of Qazi Abdul Raza~. Qazi Abdul Rashid
had let out this house to Dr. Bhu Deo Sharma, father of the appel-
R. P. SHARMA v. G. CHANDRA & ORS. (Sarkaria, !.) 211

lant, who was paying rent for the same to Qazi Abdul Rashid. He A.
further alleged that the said Abdul Rashid had migrated to Pakistan
• and the house in dispute was declared evacuee property under the then
existing law. Later on, it was put to auction on January 29, 19@
under Section 20 of the Displaced Persons (Compensation & Rehabili-
tation) Act, 1954, and was purchased by the plaintiff for a considera-
tion of Rs. 1,000/-, and the appellant was declared purchaser of this B
property with effect from April, 1, 1969. Sale Certificate, dated
March 19, 1969, was alsoissuedinhisfavour.

He further pleaded that the defendants-respondents had also filed
Suit No. 67 of 1970 for ejectment and arrears of rent against the
appellant's father, Bhu Deo Sharma. The suit was decreed on May c
10, 1971, and that in pursuance of that decree they were trying to dis-
possess the plaintiff-appellant. He further stated that since he was not
impleaded in the ejectment suit, he was not bound by that decree. On
these facts, the plaintiff-appellant claimed a declaration of his title to
the property in question and further prayed for a perpetual injunction
restraining the defendants from dispossessing him in execution of the D
said decree obtained by the defendants in Suit No. 67 of 1970.

The defendants resisted the suit. They denied that the property
I in dispute was ever declared evacuee property or that it was ever acquir-
ed under the provisions of the Act of 1954. They asserted that the
appropriate authorities never passed any order under Section 7 of the E
Administration of Evacuee Property Act declaring this property
to be evacuee property. The contesting defendant, Gyan Chandra,
further pleaded that Qazi Abdul Rashid had only I/16th share in
the house in question which was purchased by the defendants father
(since deceased) and, therefore, the defendants are exclusive owners
0f the house. Gyan Chandra further alleged that Qazi Abdul F
Rashid had migrated to Pakistan in the year 1967, long after he had
kansferred his interest and share in the house in question; that Dr.
Bhu Deo Sharma, father of the appellant had in collusion with the
Custodian Department, prepared fictitious proceedings relating to the
sale of the house in question; that the Custodian Department had no
jurisdiction to declare the property in suit as evacuee property, much G
less could they sell it under the Act of 1954. According to the defen-
dant, the auction if any held, was a nullity having been brought about
by misrepresentation and fraud.
The trial court held that Qazi Abdul Rashid was not the owner of
the house in question; that the entire proceedings taken by the Custo- H
dian Department were illegal and without jurisdiction and the plaintiff
did not acquire any title by virtue of the sale held 'by the Authorities
212 SUPREME COURT REPORTS [1980] 3 S.C.ll.
A under the Displaced Persons (Compensation and Rehabilitation) Act
(No. 44 of 1954) (for short, called the 1954 Act). In the result,
the trial court dismissed the plaintiff's suit. •
On appeal, the Additional District Judge, Bulandshahr affirmed
the findings of the trial court. He held that the jurisdiction of the civil ..
B court was not barred by section 46 of the Administration of Evacuee
Property Act (No. 31 of 1950) (hereinafter called the 1950 Act)
to go into the question whether or not the matter had been adjudicated
upon by the Authorities under that Act. It found that no inquiry,
as contemplated under Section 7 of Act 31 of 1950 was held and -(
no Notification was issued by the Authorities under that Act, declaring
c the suit property to be evacuee property. It held that Abdul Rashid
had no title or interest, whatever, in the house in question after July
31, 1953, when, in accordance with the decree of the Civil Court in the
partition Suit No. 289 of 1953, Phool Chand had deposited Rs. 343/-
regarding the value of !/6th share of Abdul Rashid in this property.
On the deposit of that amount, Phool Chand and his sons had become
D
sole:owners of the property in question and the plaintiff's father became
their tenant of the suit property.It was in that capacity that a decree
for ejectment was passed against him and in favour of the respondents.
In the result, it was held that since the property had never been declared
evacuee property after following the prescribed procedure under the
E Act and the Rules framed thereunder, the rights of the defendants-
respondents remained unaffected by the:auction held by the Custodian
Department and the consequent issue of the sale certificate in favour
of the plaintiff-appellant.

The High Court affirmed the concurrent findings of the two
F courts below and dismissed the Second Appeal '.preferred by the plain-
tiff. It agreed with the lower appellate court that the auction in favour
of the plaintiff-appellant was a nuJlity and wholly without jurisdiction
and did not confer any rights on him because the suit property had
never been declared as evacuee property in accordance with law. It
also held that Abdul ,Rashid was"in India much after the repeal of the
G U.P. Ordinance I of 1949 and consequently there was no question
of the property vesting automatically in the Custodian under the
aforesaid Ordinance. The High Court, however, granted six months'
time to the plaintiff-appellant to deliver vacanfpossession of the suit
house to the defendants-respondents without the intervention of the
court.
H
After obtaining special leave under Article 136 of the Constitu-
tion, the aggrieved plaintiff has now come in appeal before this Court.
R. P. SHARMA v. G. CHANDRA & ORS. (Sarkaria, !.) 213

The main contention of the learned counsel for the appellant is A.
two-fold : (a) In view of Section 46 of the 1950 Act, the Civilj Court
had no jurisdiction to adjudicate upon the question whether~the suit
property or any right or intere•t therein is or is not evacuee property.
• (Reliance for this contention has been placed on the decision of this
Court in Custodian of Evacuee Property, Punjab and Ors. v. Jafran
. Begumr). B
(b) The sale of the suit property has been effected in favour of the
appellant under Section 20 of the 1954 Act, after it_ had been acquired
by the Central Government under Section 12 of that Act, free from all
encumbrances, and formed part of the compensation pool. It will
therefore, be presumed that prior to its acquisition under Section 12 of C
the 1954 Act, it was evacuee property vesting in the custodian. The
orders of its acquisition passed under Section;12 and its sale under
Section 20 of the 1954 Act had become final and conclusive.
The respondent could not be allowed to go behind those orders and
question their finality on the ground that the property.has never been
evacuee property vesting in the custodian, because Section 27 of ))
1954 Act bars the jurisdiction of the Civil Court to go into this question.
The only remedy of the defendants-respondents is to claim compensa·
tion under the 1954 Act. Reference in this connection'.has been made
to N. S. Gujral v. Custodian of Evacuee Property and Anr.(2)]
Before dealing !with these contentions, some basic facts concur- .E
rently found by all the courts below may be noticed.
Qazi Abdul Rashid obtained a money decree in suit No. 523
of 1935 against one Ami Chand S/o Phool Chand and brother of
present respondents (original defendants 1 to 4). In execution of that
decree, he purchased with the permission of the court, the share of Ami
Chand in 1937. At that time, a partition suit No. 3 of 1931 amongst F
the family memhers of the said Ami Chand was pending in the Court
of the Civil Judge, Bulandshahr. Qazi Abdul Rashid did not
join as a party in the said partition suit. However, he instituted Suit
No. 452 of 1949 against the said Phool Chand and others in the court
of the Munsif, Khurja for partition and separate possession of his
G
share. The suit was contested. The Munsif decreed the suit hold·
ing that Qazi Abdul Rashid had l/16thshare in the house in question
and one other shop. Applying the provisions of Section 4 of the
Partition Act, the Munsif evaluated Qazi Abdul Rashid's !/16th
share in the suit house at Rs. 343/- and directed the sale of that
share. If
(1) [1967] 3. S.C.R. 736.
(2) [1961!] J. S.r"'.R. 497.
214 SUPREME COURT REPORTS [1980] 3 s.c.R.

A Feeling aggrieved by the said decree, Qazi Abdul Rashid pre-
ferred Civil Appeal No. 289 of 1953. The First Appellate Court
by its judgment, dated December 20, 1954 (Ex. A-2), partly allowed
the appeal and modified the decree of the trial court in so far as it related
to the shop. But it upheld the decree of the trial court in so far as it
•
related to the house now in question, whereby Phool Chand defendant
I was required to deposit Rs. 343/- as the value of Qazi Abdul Rashid's
share. In accordance with the decree affirmed by the First Appellate
Court, Phool Chand on July 31, 1953 deposited Rs. 343/- (vide Ex.
A-1) to the credit of Qazi Abdul Rashid, the then plaintiff in the
Court. Qazi Abdul Rashid being aggrieved bythedecreeoftheFirst
c Appellate Court, preferred Second Appeal No. 235 of 1955 in the
High Court. The High Court dismissed this appeal as abated by an
order, dated February 25, 1959 (Ex. A-1), due to the failure of Qazi
Abdul Rashid to take proper steps for substitution of the legal represen-
tatives of the then respondents 7 and II, who had died during the
pendency of the appeal.
;D
During the pendency of the said litigation, Phool Chand and his
two sons, Gyan Chand and Raghbur Sharan, instituted Suit No.
323 of 1953 in the court of the Munsif, Khurja for the recovery of the
damages for use and occupation of the house in dispute against Qazi
,£ Abdul Rashid. By a judgment dated September 30, 1959 (Ex. A-4)
the trial court decreed that suit against Qazi Abdul Rashid.
Aggrieved by that judgment and decree, Qazi Abdul Rashid pre-
ferred Civil Appeal No. 461 of 1959 which was partly allowed by
the First Appellate Court on December 21, 1960.

The trial court further found---and this finding has been upheld b) (

the First Appellate Court and the High Court that Abdul Rashid
definitely remained in India at least till 1963, if not till 1965. Upto
l
1963, he was directly receiving rent from his tenant, the father of the
present plaintiff-appellant, in respect of the suit house. This was held
primarily on the basis of documentary evidence (Ex. A-,14/A).

In view of the fact that Qazi Abdul Rashid remained in India
continuously upto 1963, no question of automatic vesting nnder the
U.P. Ordinance No. 1 of 1949, could arise. That Ordinance was
not applicable to him at all. For our pnrpose, only the 1950 Act
and the 1954 Act are relevant. It will, therefore, be worthwhile to
notice, very briefly, the material provisions of these statutes.
R. P. SHARMA v. G. CHANDRA & ORS. (Sarkaria, !.) 215

Clause (d) of Sectiou 2 of the 1950 Act defines "evacuee;" this A
-definition so far as material, reads: "Evacuee means any persons-
(i) who on account of the' setting up of the Dominions ofindia
• and Pakistan or on account of civil disturbances or the fear
of such disturbances, leaves or has, on or after the 1st day
of March, 1947, left any ploce in a State for any place B
outside the territories now forming part ofindia, or
(ii) who is a resident in any place now forming part of Pakistan
and who for that reason is unable to occupy, supervise or
manage in person his proporty in any p1rt of the territories
to which this Act extends, or whose property in any p1rt of
the said territories has ceased to be occupied, supervised or
c
managed by any person or is being occupied, supervised or
managed by an unauthorised person, or ........ "
(iii) to (iv) are not relevant for this case.

Clause (h) defines "evacuee property" to mean "any property of an D
evacuee (whether held by him as owner or as a trustee or as a bene-
ficiary or as a tenant or in any other capacity) and includes any property
which has been obtained by any person from an evacuee after the 14th
day of August 1947, by any mode of transfer which is not elfoctive by
reason of the provisions contained in Section 40 :) but does not include
........ " Sub-section (1) of Section 7 requires that where the Custo- x
dian is of opinion that any property is evacuee property within the
meaning of this Act, he may after causing notice thereof to be given
in such manner as may be prescribed to the persni interested, and
after holding such inquiry into the m1tter ai the cir~u.nitanees of the
case permit, pass an order deelaring a•w suoh prop"ty to be evacuee
property. Sub-section (3) of the Section peremptorily requires the I'
Custodian to notify from ti:m to ti:n' bf p1',\i01tin'in t'D OJicial
Gazette or in such other manner as m1y be prc1cribe1, all proinrties
declared by him to be evacuee properties under S;ib-section (1).

Rule 6 of the Rules framed under the 1950 Act requires that the
notice to be served underjSection 7(1) on persons interested in the pro-
G
perty proposed to be declared evacuee property shall be in Form I.

Section 8 provides, "Any property doclared to be evacuee property
under Section 7 shall be d"m'd to hive nsted in the Custodian for the
State-
R
( a) in the case of the property of an evacuee as defined in sub-
clause (i) of clause {d) of Section 2, from the date on which
216 SUPREME COURT REPORTS [1980] 3 S.C.R.

A he leaves or left any place in a State for any place outside the
territories now forming part of India;
(b) in the case of the property of an evacuee as defined in sub-
clause (ii) of clause (d) of Section 2, from the 15th day of
August, 1947; and •
B (c) in the case of any other property, from the date of the notice
given under sub-section (I) of Section 7 in respect thereof.
(The rest is not material)."
From a conjoint reading of Sections 7 and 8, it is clear that the
making of a declaration after inquiry under Section 7, that the property
is 'evacuee property' is a sine qua non for giving the Custodian domi-
c nion over the property. If no proceeding is taken under Section 7,
there can be no vesting of the property in the Custodian. (See obser-
vations in Fazalbhoy v. Official Trustee of Maharashtra(l).
The other point to be noted is that in the case of an 'evacuee'
falling under sub-clause (i) cf the ddinilicn cf 'evacuee', that is one, who
D on account of the things mentiLned in that sub-clause, leaves India or
has left India on or after August 14, 1947, the vesting will date from the
)-
date he leaves India fer any outside destination. Jn the instant case,
Qazi Abdul Rashid left India to settle in Pakistan long after August
14, 1947 (in 1963).
E Section 9 gives power to the Custodian to take possession of
evacuee property which vests in him under Section 8.
f
Then, there is Section 7A which was inserted by the Adminis-
tration of Evacuee Prcp<rty (Amendment) Act, 1954 (42 of 1954)
with effect from May 7, 1954.
"Notwithstanding anything contained in [this Act, no property'
shall be declared toj be evacuee property on or after the 7th day of May
1954;" This is made subject to two Provisions. Clause {a) of the
First Proviso saves from the application of this Section any property
in respect of which proceedings are pending on the 7th day of May,
1954 for declaring such property ,to be evacuee property. Clause (b)
G of the Proviso saves from the bar of this Section property of
any person who became an evacuee on or after the Jst day of March,
1947, and who on the 7th day of May, 1954 was resident in Pakistan.
The second Proviso lays de wn that no notice under Section 7 for declar-
ing any property to be evacuee property with reference to Clause (b)
.
of the preceding ?roviso shall be issued after the expiry of six
H
months from the commencement of the Administration of Evacuee
(l).[1979] 2 s.c.R..699 at_p. 712.
R. P. SHARMA v. G. CHANDRA & ORS. (Sarkaria, !.) 217

Property (Amendment Act, 1954). Then, there are three Explanations, A ,
which are not material for our purpose.
It is clear from the facts concurrently found in the' instant case that
.• Qazi Atdul Rrshid was throughout residing in India and personally
ncanagitg the rnit rroperty and collecting its rent till 1963. He migra-
ted or went away from India for good sometime in 1963 or thereafter. B
Therefore, if the Custodian had not taken any proceedings under
Section 7 of the 1950 Aot to declare the suit property as evacuee pro ..
uerty before the 7th day of May 1954, and no such proceedings were
·pending on May 7, 1954, the property of Qazi Abdul Rashid could
not be declared evacuee property under the Act, the power of the Gusto·
<lian to do so having been terminated by Section 7A. c
It was for the plaintiff-appellint to show by producing relevant
notifications or other documentary evidence that the Custodian had
taken proceedings and declared the suit property to be evacuee pro-
perty in accordance with the provisions of Section 7 or that such pro-
ceedings had been initiated earlier and were pending on the 7th day
bf May, 1954. Despite ample opportunity granted to the plaintiff,
he did not produce any such documentary evidence in the courts
1
below. All that he showed was that the Rehabilitation Autho-
rities had, purporting to act under the 1954 Act, sold the suit property
to him and issued the sale certificate in his favour on April 1, 1969 .
..f. Section 24 gives a person aggrieved of an order made under E
Section 7 by the Custodian a right of appeal. Section 27 confers power
of revision on the Custodian-General to revise suo motu or on the appli-
cation made to him, any order passed by the Custodian if it is not
found to be legal or proper.
Sections 28 and 46 bar the jurisdiction of courts. Section 28
F ,
reads thus:
"Save as otherwise expressly provided in this Chapter, every
order made by the Custodian-General, Custodian, Additiona
Custodian, Authorised Deputy Custodian, Deputy Custo-
dian or Assistant Custodian shall be final and shall not be
called in question in any Court by way of appeal or revisi<>n G
. or in any original suit, application or execution proceeding."
> Section 46 of the 1950 Act provides:
"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 R
any property or any right to or interest in any property
is or is not evacuee property; or
15-i 89SCJ/80
218 SUPREME COURT REPO:RTS [1980] 3 S._,C.R.

A (c) to question the legality of any action taken by the Custo·
dian-General or the Custodian under this Act, or

(cl) in respect of any matter-which the Custodian-General or
the Custodian is empowered by or under this Act to •
determine."
B
The scope of Sections 28 and 46 of the 1950 Act came up for
consideration before this Court in Jafran Begum's case (ibid). The
facts of that case were that a person who was in possession of a house
inlndia, migrated to Pakistan. Notice was issued to his son under
c s.7 of the Administration of Evacuee Property Act, 1950, and after -~-
hearing him the Deputy Custodian declared the house to be evacuee
property. Jafran Begum, who was the mother of the evacuee and on
whom the notice under s.7 of the Act was not served, started proceed-
ings before the Custodian, claiming that the owner of the house had
executed a will bequeathing the property to her and so the property
D could not be declared evacuee property. That application was dis-
missed by the Custodian. When she failed before the authori-
ties constituted under the Act, she filed a suit in the civil court basing
Ii.er case on the will and prayed for a permanent injunction restraining
the auth0rities from evicting her from the house. On the question of
jurisdiction being raised, the High Court held that determination of a
E complicated question of law relating to title by authorities under the
1950 Act was not final and could be reopened in the civil court, and
Section 46 did not bar the civil court's jurisdiction to entertain such
a question. After examining the scheme of the 1950 Act, Wanchoo,
C.J., speaking for the Bench constituted _by three learned Judges, laid
down the law, thus:
F
"(Where) 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 oflaw, jurisdiction -0f
courts is clearly barred under S. 46(a). It is difficult to see
how a distinction can be drawn between decisions under S. 7
G based on questions of fact and decisions based on questions -0f
Jaw. 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
11 and whether simple or complicated."

( Empha is supplied)
R. P. SHARMA v. G. CHANDRA & ORS. (Sarkaria, !.) 219

" .......... S.46 is a complete bar to the jurisdiction of civil or A
revenue courts in any matter which can be decided under
S. 7. This conclusion is reinforced by the provision con-
tained in S. 4(1) of the Act which provides that the Act
overrides other Jaws and would thus override S. 9 of the
Code of Civil Procedure on a combined reading of Ss.4,
28 and 46. (But) ...... S. 46 or S. 28 cannot bar the B
jurisdiction of the High Court under Art. 226 of the Con-
stitution."
(Emphasis supplied)
'From the crucial Words underlined in the above extract, it is clear that
·even according to the rule of the above decision section 46 will not c
bar the jurisdiction of the civil court where the Custodian has
·never declared the property as evacuee property after taking proceed-
ings under Section 7 of the 1950 Act.
A Full Bench of the Allahabad High Court in Khalil Ahmed Khan
v. Malka Mehar Nigar Begum(I), held that where the matter as to
whether a property is evacuee property or not, has never been adjudi·
cated upon by the Custodian himself but he merely takes action on the
basis of the judgment of the court of first instance, without deciding the
matter for himself, that judgment being subject to correction by the
·court of appeal does not become final merely because the Custodian
·had taken action on the basis thereof. In such a case, the jurisdiction
E
.of the civil court of appeal to determine the correctness of an adjudi-
-cation already made by the civil court is not barred. This decision was
.noticed by this Court in Jafran Begum (ibid) , and it was observed
·that to some extent, "this case is in line with the view we have taken."
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 ques- F
tion whether or not a property is evacuee property comes for adjudi-
·cation, the power of the Custodian-General or the Custodian under
this Act of 1950 to determine that question is subsisting. That is to
say, if at the point of time when the question arises, the power of the
authorities constituted under this Act to adjudicate that question
stands terminated or extiµguished by the operation of Section 7A of G
1954, none of the clauses (a), (c) and (d) of section 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.
section 28 has no application to the facts of the instant case because II
no order made by any of the authorities mentioned in that section is
(I) A.J.R. 1954 All. 362.
220 SUPREME COURT REPORTS [1980] 3 S.C.R,

A being called in question. Section 46, also, does not come in the way
because no proceedings under section 7 of the 1950 Act to declare
the suit house as evacuee property were taken by the Custodian against
Qazi Abdul Rashid. No notification under sub-section (3) of section 7
published in the Official Gazette has been placed on the record. Nor •
was it shown that any proceedings initiated under section 7 of the Act
B to declare it evacuee property were pending on May 7, 1954, and the
question of saving those proceedings under the proviso to section 7A
does not arise.
Qazi Abdul Rashid was throughout a resident of India till 1963
and was personally managing the suit house and collecting rent of it
c from the tenant. After May 7, 1954, therefore, the Custodian had --~-.
no jnrisdiction under the 1950 Act to declare the suit house as evacuee
property. The jurisdiction of the courts below to go into this question
was thus not barred by anything in sections 28 and 46 of the 1950-
Act.
D We, therefore, negative the first contention of the appellant.
Now let us have a look into the relevant provisions of the 1954
Act.
Section 2(c) of the 1954 Act defines "evacuee property" to mean
any property which bas been declared or is deemed to have been
E declared as evacuee property under the Administration of Evacuee
Property Act, 1950. At this place, it may be recalled that the second
part of the definition which contains a deeming provision has no
application to the facts of the instant case because Qazi. Abdul Rashid
was throughout residing in India till his migration to Pakistan in 1963.
That is to say, he had not become an evacuee before the repeal of the
F U.P. Ordinance No. I of 1949. This Ordinance is not relevant for
the purposes of the present case. The first part of the definition,
also, is not applicable because the suit house has never been declared
as evacuee property under the 1950 Act.
The next provision is to be found in section 12, which reads as
G follows:
"S. 12. Power to acquire evacuee property for rehabilitation
.•
of displaced persons.-
(!) If the Central Government is of opinion that
it is necessary to acquire any evacuee property
H for a public purpose, being a purpose connected
with the relief and rehabilitation of displaced
persons, including payment of compensation
R. P. SHARMA v. G. CHANDRA & ORS. (Sarkaria, !.) 221

to such persons, the Central Government may at A
any time acquire such evacuee property by
publishing in the Official Gazette a notification
• to the effect that the Central Government has
decided to acquire such evacuee property in
pursuance of this section.
B
(2) On the publication of a notification under sub-
section (1), the right, title and interest of any
evacuee in the evacuee property specified in the
notification shall, on and from the beginning of the
date on which the notification is so published,
be extinguished and the evacuee property shall c
vest absolutely in the Central Government free
from all encumbrances.
(3) It shall be lawful for the Central Government,
if it so considers necessary, to issue from time to
time the notifications referred to in sub-section (I)
in respect of- D
(a) al! evacuee property generally; or
(b) any class of .evacuee property; or
(c) all evacuee property situated in a specified
area; or
(d) any particular evacuee property. E
(4) All evacuee property acquired under this section
shal1 form part of the compensation pool."
It may be noted that the necessary prerequisite for acquiring
property under Section 12 is that it must be 'evacuee property' as
ilelined in section 2(c) of the 1954 Act. In the absence of this essential F
prerequisite, the Central Government is not competent to acquire
that property under this section for throwing it into the compensation
pool. This prerequisite or condition precedent, as already noticed,
was lacking in the instant case. No notifications published in the
Official Gazette either under sub-section (I) or sub-section (3) of sec-
• tion 12 appear to have been brought on the record of this case. Our G
attention was not drawn to any such notifications.
Then, there is section 20 which confers power on the managing
officer to transfer any property out of the compensation pool by sale
or in any other manner indicated in clauses (b) to (e) of that section.
Again, the necessary prerequisite for sale is that the property must ll
have been declared under section 7 of the 1950 Act to be evacuee
property by the Custodian or it must be evacuee property under the
22 2 SUPREME COURT REPORTS [1980] 3 S.C.R~

'A deeming provisions of any law which may be applicable to the case
of the evacuee. In other words, only that property which was evacuee
property could be acquired under section 12 and form part of the com·-
pensation pool which satisfies the definition of "evacuee property" •
given in section 2(c) of the 1954 Act. If the property was never eva-
cuee property, as defined in section 2(c), it does not legally form part
B of the compensation pool and, therefore, cannot be disposed of
under Section 20 or the Rules framed under this statute.
Then, there are Sections 22, 23 and 24. Section 22 gives a right
of appeal to a person aggrieved by an order of the Settlement Officer
or a managing officer, to the Settlement Commissioner. Any person
c aggrieved by the order of the Settlement Commissioner/Additional
Settlement Commissioner/Assistant Settlement Commissioner or a
managing officer has been given a right to prefer an appeal to
the Chief Settlement Col)lmissioner under Section 23. But no appeal
is competent from any order passed in appeal under Section 22. Sec-
tion 24 confers the power of revision on the Chief Settlement Commis-
D sioner to revise any order of the authorities mentioned in that Sec-
tion, including that of the managing officer.

Some argument was made by the learned counsel for the appel·
!ant that the only remedy of the respondents was to prefer an appeal
or revision, under the aforesaid provisions of this Act and that, since
F. they did not avail of the same under Section 27, the sale made by the
managing officer in favour of the plaintiff-appellant has become final
and cannot be questioned in any court. Section 27 reads thus :
"27. Finality of orders.-Save as otherwise expressly
provided in this Act, every order made by any officer or
F iluthority under this Act, including a managing corpora-
tion, shall be final and shall not be called in question in
any court by way of an appeal or revision or in any original
suit, application or execution proceeding."

It will be seen that Section 27 is not attracted because the plaintiff;.
G who filed the original suit and is now coming before us by way of •
appeal, is not questioning the finality of the order of the sale alleged'
to have been made by the managing officer. It is the defendant.
respondents who are resisting the plaintiff's claim on the ground
that the sale is a nullity. It could not be made under this Act of 1954
for the reason that it was never declared evacuee property under Sec-
-U tion 7 of the Act and thus never formed part of the compensation pool.
The words "under this Act" occurring in Section 27 are significant.
They show that those orders which are not made by any officer or
It. P. SHARMA v. G. CHANDRA & ORS. (Sarkaria, /.) 223

authority in accordance with the provisions of this Act, but outside A
the provisions of this Act in excess of jurisdiction, can be called in
question in the civil court. It may be noted that the language of Sec-
• tion 27 is not as wide as that of Section 46 of the 1950 Act.
The facts of N.S. Gujral (ibid) were entirely different. There,
an Indian citizen held a money decree against a person who, subse- B
quent to the passing of the decree, turned an evacuee. It was held
that at no time, the decree-holder had any right whatsoever in the
property which vested in the Central Government on the issue of the
notification under Section 12. It was further held that though the
decree-holder cannot claim to proceed against the property in suit
or its income after the date on which it vested in the Central Govern- c
ment by virtue of the notification under Section 12, he can ask the
Custodian to pay him out of the moneys lying with him on the date of
such vesting if he can satisfy him in the manner provided in Section
!0(2)(n) read with Section 10(1) of the 1950 Act. The ratio of that
decision has no application to the facts of the pncent cas.
D,
The second contention, also, being meritless. is over-ruled.
For the foregoing reasons, the appeal fails and is dismissed with
costs.
Before parting with this judgment, we may note here that at 1te
conclusion of final arguments in this Court, counsel for the appellant E
represented that his client was making all efforts to search out and
produce the Gazette Notification, whereby the suit property was dec-
lared and notified as evacuee property by the Custodian under sub-
section (3) of Section 7 of the 1950 Act. He wanted some time. We
therefore, reserved this judgment to give the plaintiff-appellrnt a last
chance to produce such a notification of which the Court could take F
judicial notice. But, he has failed to produce any such Gazette Noti-
fication. Instead, he has produced, what purports to be, a copy of
an order, dated January 5, 1951, of the Assistant Custodian. This
is not a copy of any Gazette Notification of which judicial notice,
without formal p1oof, could be taken. We, therefore, do not find
any good ground to reopen the case, and decline the appellant's request G
for permitting him to produce additional evidence at this very late
stage.
NVK. Appeal dismissed.