The main legal point established in the judgment is that the determination of whether a property is evacuee property is within the Custodian's jurisdiction, but the decision of a question of title involving complicated questions of law is not final and can be reopened in civil courts.

S.S.Dulat, J.

1. We have in this case to consider the scope of Section 46 of the Administration of Evacuee Property Act, 1950, and the occasion has arisen because, when this case was before the Division Bench, it was felt that in certain statements made in this Court concerning this particular section there was some conflict. It appears now that the conflict was more apparent than real and it arose because of the difficulty of describing in general terms the line which divides matters which are to be finally decided by the Custodian alone and those others where the decision of the Custodian is not final but is open to examination and final decision by the civil courts. Section 46 of this Act says:

"46. 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 determine."

Evacuee Property is defined in the Act as any property of an evacuee (whether held by him as owner or as a trustee or ms a beneficiary or as a tenant or in any other capacity." There are then some exceptions with which we are not concerned. An evacuee is defined as a person who has in certain circumstances left India for a place outside India. It would appear, therefore, that when a question arises whether any property is or is not evacuee properly, two matters have to be considered:

(1) Whether a particular person has or has not become an evacuee; and

(2) whether the property in dispute belongs to him.

The first question, almost invariably, is a question of fact and there is general agreement before us that such a question is to be determined, and deter mined finally, by the Custodian and the civil courts have nothing to do with it. The second question however, may involve a simple question of fact while, on the other hand, it may involve a complicated question of law or, as many of the decisions have put it, a question of title. It is about such matters that the controversy mainly arises. In a case decided in this Court, Kailash Chand V/s. Additional Deputy Custodian-General, 1955-57 Pun LR 440, the question was whether a sale of certain property which had taken place in 1939 was in law valid or invalid because of certain provisions of Hindu law, and the ultimate question, whether the property was or was not evacuee property, turned on the decision of the first question. Kapur, J. held that the Custodian had no jurisdiction to decider such a question which was to be settled by the civil courts. In actual fact thus his decision was that a complicated question of Hindu law could not be left to be finally settled by the Custodian. While discussing this matter, however, he observed: "The jurisdiction of the Custodian is (i) to determine whether the property is evacuee property, which means that the Custodian has to determine whether the person who owned the property has become art evacuee, and (ii) whether he did own the property." This general statement apparently caused some embarrassment to Grover, I. in Ram Gopal V/s. Banta Singh, I95S-60 Pun LR 307: (AIR 1958 Punj 384) who thought that "if it is within the province of the Custodian to adjudicate on the second matter, namely, whether the evacuee owned the property of not, it would seem that whenever a question of title arises between the evacuee and non-evacuee, it is left to the Custodian to give adjudication on that point." This the learned Judge was not willing to accept and he held that it was not for the Custodian to decide a question of title of the kind involved in the case before him. The actual question in the case before Grover, J. was whether a certain exchange of land made in 1946 was