The court emphasized the incidental powers of the authorities under the Act to adjudicate property rights and heirs of the owner who have migrated to Pakistan.

S.K.Katriar, J.

1. Heard learned Counsel for the parties. The appellants are represented by Mr. S.S. Nayar Hussain, learned Sr. Advocate Respondent Nos. 1 to 3 by Mr. Ajay Tripathi, Addl. SCCG, and Respondent Nos. 4(i) to 4(iv) are represented by Mr. Suman Kumar.

2. The plaintiffs are the appellants against a judgment of affirmance. This appeal is directed against the judgment dated 2-2-1999, passed by the learned Additional District Judge, Hilsa, Nalanda, in Title Appeal No. 32 of 1991 Md. Shariff and Ors. V/s. Union of India and Ors. whereby he has upheld the order dated 3-4-1991, passed by the learned Munisff, Hilsa, in Title Suit No. 19 of 1978, Md. Shariff Mian and Ors. V/s. Union of India and Ors. The trial Court held that the suit is not maintainable in terms of Secs. 42 and 28 of the Administration of Evacuee Property Act, 1950 (hereinafter referred to as the Act).

3. The suit properties were declared to be evacuee property after following the procedure prescribed by the Act. The plaintiffs herein had moved the Assistant Custodian, thereafter, the Deputy Custodian, and finally the Custodian-General. Their case before the authorities under the Act was that the property beloged to Abdul Rauf who died leaving behind two sons, namely, Md. Sharif and Md. Hanif. Md. Sharif has had one son, namely, Shorab. It was their further case that they never migrated to Pakistan and, therefore, there was no question of declaration of the suit property to be evacuee property which belonged to Abdul Rauf. The plaintiffs contention was rejected by all the three authorities under the Act, who held that neither Md. Sharif nor Md. Hanif nor Sohrab was the heir of Abdul Rauf. They have further found that Md. Sharif was not the son of Abdul Rauf. Liaquat was the son of Shafique Mian, whereas Shafique and Liyakat Mian, son and grandson of Abdul Rauf had migrated to Pakistan, leaving behind the suit properties. Md. Sharif and Md. Hanif and Sohrab were not the heirs of Abdul Rauf and they have no right, title and interest in the suit properties.

4. Having exhausted the three-tier remedy under the Act and having lost although, the plaintiffs instituted the aforesaid suit for declaration that they are the heirs of Abdul Rauf and they had never migrated to Pakistan. The trial Court dismissed the suit holding that the suit was not maintainable in terms of Sections 46 and 28 of the Act, which clearly bars a suit. The-plaintiffs preferred appeal before the District Judge who has dismissed the appeal by the impugned judgment and has on the same ground upheld the order of the learned Munisf.

5. Learned Counsel for the appellants has formulated the following substantial questions of law for consideration of this Court:

I. The Act is applicable only to the evaucee property. The plaintiffs clear case is that they never migrated to Pakistan and they are owners of the suit property. Therefore, the suit is maintainable.

II. The relief sought for in the suit, namely, the plaintiffs are the heirs of Abdul Rauf, cannot be adjudicated by the authorities under the Act, and can be adjudicated only in a duly-constituted suit.

6. Learned Addl. Standing Counsel for the Central Government has strenuously opposed this appeal.

7. Learned Counsel for the heirs of deceased Respondents Nos. 4(i) to 4(iv) has also opposed the appeal. According to him, Sardar Himmat Singh the original Respondent No. 4 had auction purchased the suit property on 4-1-1972 under the Act, and is the owner and in possession of the suit property since then. The suit property was declared evacuee property long time back. In his submission, therefore, the appeal is fit to be dismissed.

8. Having considered the rival submissions, I am of the view that this appeal is fit to be dismissed. After having exhausted the statutory remedies under the Act and lost although, it is no longer open to the appellants to institution a suit. The same is obviously barred by Secs. 46 and 28 of the Act as well as Se