Section 46 of the Administration of Evacuee Property Act, 1950 bars civil courts from adjudicating upon questions of whether a property is evacuee property or not, unless otherwise expressly provided in the Act. However, this bar does not apply when the plaintiffs' suit does not raise any question or seek adjudication on the nature of the property as evacuee property.

S.N.Jha, J.

1. This appeal by defendant No. 4 arises out of a judgment of affirmance. The plaintiffs filed suit claiming inter alia, declaration of their title with respect to suit property and its recovery. It is not necessary to set out the pleadings of the parties for decision of the questions which have been raised in this appeal. Suffice it to say that the plaintiffs claim is based on purchase from the auction purchaser, defendant No. 9 in the suit, of a property which was declared to be evacuee property under the Administration of the Evacuee Property Act, 1950 (in short the Act). The defendant inter alia on the defence that the suit property is not evacuee property. A plea was also taken as to bar the suit under Sec. 46 of the Act. The trial Court negatived the defence and decreed the suit as against the appellants which has been upheld by the lower appellate court.

2. Mr. Kalika Nandan reiterated the plea as to bar of the suit under Sec. 46 of the Act and submitted that the suit being maintainable as seeking adjudication upon a question as to the nature of the property the court should have dismissed the suit as against the appellants as well. Sec. 46 of the Act reads as follows

46. Jurisdiction of Civil Courts barred in certain matters.--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

(b) xx xx xx xx(c) to question the legality of any auction 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 determine.

From a bare reading of the said provisions it is obvious that unless otherwise specifically provided in the Act the Civil Court has no jurisdiction to decide any question as to whether any property or any right to or interest in any property is or is not evacuee property. It is well settled principle that the nature of the suit is determined on the basis of the plaint and not on the basis of the defence taken in the written statement. In that view of the mailer., I have gone through the plaint. From a reading thereof it becomes clear that the plaintiffs have nowhere raised any question or sought any adjudication of the question as to the nature of the property whether it is evacuee property or not. As a matter of fact, the plaintiffs have merely relied upon the adjudication made by the competent authorities under the Act and the findings recorded by them to the effect that the property is evacuee property. It is the appellants, who raised the question as to the nature of the property contending that it was not evacuee property. In my opinion, whatever be said of the merits of the defendants case, so far as the question of bar of jurisdiction under Sec. 46 is concerned, the same cannot be said to be applicable by reason of the defence taken by the appellants in the written statement. So far as the merits of his case are concerned, he has lost in both the courts and this Court cannot be behind the concurrent findings of fact. In this connection the provisions of Sec. 28 of the Act upon which reliance was placed by the counsel for this plaintiffs may also be noticed. That Section gives finality to the order passed by the competent authorities under the Act which are not to be called in question in any court by way of appeal or revision or in original suit application or execution proceeding. What the appellants really wanted was reopening of the orders passed by the competent authorities which is expressly prohibited under Sec. 28 of the Act.

3. learned Counsel for the appellants next contended that the Act being a complete Code in itself the plaintiffs should have sought itself for possession before the competent authority under that Act and not in the Civil Court. Reference in this connect