The Court cannot determine whether property is evacuee property; this determination must be made by the Custodian under Section 7 of the Administration of Evacuee Property Act, 1950, or similar provisions of earlier enactments.

Weston, J.

1. This is an application by the Custodian of Evacuee Property against an order made by the Subordinate Judge, 1st class, Moga. There are seven respondents.

2. The facts are that on 14-10-1947, respondents Nos. 1 and 2 filed an application under Section 14, Arbitration Act, for filing of an award made between them and one Jodhi son of Chuhar. The award was made a rule of the Court on the same day and a decree passed in terms thereof. These terms were that respondents Nos. 1 and 2 were to recover art amount of Rs. 482/-by sale of a flour-mill engine which was situate in Ajitwal village in Moga Tehsil. Execution was taken out and the flour-mill was sold on 21-2-1948 and this sale was confirmed on 3-4-1948. Respondents Nos. 3 and 4 were the purchasers at the sale and they paid an amount of Rs 605/-. Later, these respondents sold the flour-mill to respondent No. 5 who subsequently sold it to respondents Nos. 6 and 7 for an amount of Rs. 4,900/-. On 6-10-1949 the Assistant Custodian, Ferozepur, filed an application under Section 15 of Ordinance No. IX of 1949 asserting that the engine was evacuee property and asking that the decree, sale and subsequent transfers set out above should be set aside and possession be given to the Custodian. The grounds of the application were that Jodhi was an evacuee, that the award of the 14-10-1947 was collusive and that the decree made thereon and subsequent transfers were ineffective against the Custodian.

3. The application was resisted on the ground that Jodhi was not an evacuee. It was also claimed that in any event respondents Nos. 3 and 4 were bona fide purchasers for valuable consideration and that after the purchase improvements had been made and in any event compensation must be paid for those improvements.

4. The learned Subordinate Judge heard evidence on the issue whether Jodhi was or was not an evacuee and holding on this evidence that the Assistant Custodian had failed to prove that ha was an evacuee dismissed the petition.

5. It is claimed on behalf of the Custodian that the learned Subordinate Judge had no jurisdiction to decide the question whether or not Jodhi was an evacuee and therefore whether or not the property was evacuee property.

6. It is necessary to consider the history of legislation enacted to deal with the property of evacuees. It is enough to begin with the East Punjab Evacuees (Administration of Property) Act, Act 14 of 1947, although there was an earlier Ordinance, namely the East Punjab Evacuee (Administration of Property) Ordinance, Ordinance 4 of 1947. The situation which occasioned this legislation was unprecedented. Much property abandoned by persons who left India after the 1st day of March 1947 clearly was evacuee property, but there was also much property abandoned, particularly movable property, the nature of which had been obscured by possession of it having been taken either with or without some ostensible claim to title by persons other than evacuees. It is not surprising that frequent amendments of the law dealing with the matter were found necessary.

Section 6 of the Act of 1947 gave power to all Custodians appointed under the Act by general or special order with reference to the location or description of a specific or any class of evacuee property to assume possession of or control over the property mentioned in the order which shall be. published in the official Gazette. From the date of such order the holder of such property, if any, was to be deemed to be holding it on behalf of the Custodian and was required to surrender possession on demand. On 4-5-1948, a notification dated the 1-5-1948 was published in the East Punjab Government Gazette which notification was as follows : "In exercise of the powers vested under section 6(1) of the East Punjab Evacuee (Administration of Property) Act, 1947 as amended by the East Punjab Evacuees (Administration of Property) (Amendment) Act, 1948, the Custodian of Evacuees Property, East Punja