The jurisdiction of the Civil Court is barred for deciding whether the suit property is evacuee property or not under Section 46 of the Administration of Evacuee Property Act.

MUNGESHWAR SAHOO, J.

1. The plaintiff-appellant-appellant has filed this Second Appeal against the judgment and decree dated 19.05.1990 passed by 1st A.D.J., Bhagalpur in Title Appeal No.59 of 1986 dismissing the appeal and thereby confirming the trial court judgment dated 30.08.1986 passed by 3rd Additional Sub Judge, Bhagalpur in Title Suit No.114 of 1978 whereby the plaintiff’s suit was dismissed.

2. The plaintiff filed the aforesaid suit for declaration of his right, title and interest with respect to suit land measuring 30 decimals in Mauja Puraini more fully described in Schedule I of the plaint. According to the plaintiff, the suit land belonged to Md. Abdul Basit who was also the ex-landlord and after vesting, the said Abdul Basit became the Raiyat and regularly paid rent to the State. He died in 1973 leaving behind one sister, Bibi Rokaiya Khatoon who came in possession and sold the same on 30.12.1974 to the plaintiff. However, the defendant got her name recorded in the khatiyan finally published on 24.11.1970 with respect to suit land.

3. The defendant’s case is that the suit land had already been declared evacuee property being properties of evacuee namely Abdul Bin Quadir and his family who had migrated to Pakistan in Evacuee Property Case No.56 of 1951 in which Abdul Basit, brother of Abdul Bin Quadir filed objection which was rejected then the lands were declared as evacuee property. Subsequently, it was auction sold on 29.08.1953 which was purchased by Banarsi Das, a displaced person in whose name sale certificate was issued. Said Banarsi Das sold the suit land by the registered deed dated 31.01.1965 in favour of the defendant. Therefore, the suit is barred under Section 46 of Administration of Evacuee Properties Act, 1950. The trial court found that the property was auction sold by custodian in favour of Banarsi Das and the plaintiff did not acquire valid title by sale deed dated 30.12.1974. The suit is barred under Section 46 of the Administration of Evacuee Property Act. The plaintiff failed to prove his possession over the suit property. Accordingly, the suit was dismissed. The appellate court recorded a finding that the propertyoriginally belonged to Abdul Bin Quadir who became evacuee and Banarsi Das purchased from the custodian and sold to defendant who is in possession. The sale deed executed by Bibi Rokaiya in favour of plaintiff conveyed no title. The jurisdiction of Civil Court is barred under Section 46 of the Administration of Evacuee Property Act. Accordingly, the appeal was dismissed.

4. On the date of admission i.e. on 05.11.1992, the following substantial questions of law were formulated:-

I. Whether the jurisdiction of the civil court was barred under section 46 of the Administration of Evacuee Property Act?

II. Whether Ext.5 series, Register II and 3 series, rent receipt, in the name of Abdul Basit could be legally discarded even in absence of any proof showing the title and possession of anyone else over the suit lands?

III. Whether in the absence of any right or title of the said Abdul Bin Quadir and in view of the obvious illegalities in the orders of the authorities concerned the defendant or her vendor could acquire any title?

IV. Whether the judgment of Evacuee Case No.46 of 1951 filed by the plaintiff as Ext.7 was rightly ignored by the learned courts below, although it fully proved that the suit property was never declared Evacuee property?

5. The learned counsel, Mr. Abbas Haider submitted that since there was no notification under Section 7 of the Administration of Evacuee Property Act, the jurisdiction of Civil Court is not barred. The learned counsel relied upon 1980(3) Supreme Court Reports 207 (Dr. Rajendra Prakash Sharma vs. Gyan Chandra and others) on this point. The learned counsel further submitted that the Register II, rent receipts in the name of Abdul Basit could not have been disbelieved by the courts below which clearly proved title of Abdul Ba