T. C. SHRIVASTAVA, J.

( 1 ) THIS first appeal has been filed by the plaintiff against the dismissal of his suit by the Additional District Judge Indore on a preliminary point that it was not maintainable in view of the provisions in the Administration of the Evacuee property Act (hereinafter referred to as the Act ).

( 2 ) THE property in dispute belonged to one Hakim Mohammad Hussain. He died leaving his brother's daughter Amtubai the plaintiff, his widow Mst. Allrakhi (defendant No. 6) and other relations who were impleaded as defendants 1 to 5. The suit was for partition of the estate left by Mohammad Hussain and separate possession thereof. The Deputy Custodian General of Evacuee Properties has been also impleaded as defendant No. 7 as he is in possession of suit properties on behalf of one Moulvi Taiyab Ali who claims to be a devisee under a will executed by the said Mohammad Hussain. Moulvi Tiyabali migrated to Pakistan sometime in 1947.

( 3 ) THE suit was filed on 28-7-48. The property was declared evacuee property on or about 27-9-49. The custodian was impleaded on 17-2-51. Defendants 3 and 4 who are legatees under the will in favour of Taiyabali have migrated to Pakistan and were also declared evacuees.

( 4 ) THE defendant No. 6 had filed an objection before the Deputy Custodian for release of certain properties and it was allowed in respect of House No. 20 on the ground that it was given to her under the will in favour of Taiyabali. All the defendants and the plaintiff have filed objections before the Deputy Custodian challenging the will and these are pending for disposal. The Deputy Custodian objected to the continuation of the suit on the ground thate it was barred under section 46 of the Act and this plea has been upheld.

( 5 ) BEFORE we consider the questions of the tenability of the suit, we may briefly refer to the provisions of the relevant Ordinances and Acts. The first legislation in the series is the Ordinance No. 56 of 1949 promulgated by the Madhya Bharat government on 9-8-49. Then followed Ordinance Nos. 27 of 1949 and 4 of 1950 issued by the Government of India and ultimately the central Act No. 31 of 1950 was enacted. There is provision in all these legislations to protect actions taken. We need only refer to the provisions of the first Ordinance and the Act of 1950.

( 6 ) ORDINANCE No. 56 of 1949 defines evacuee property to mean"any property in which an evacuee has an interest or which is held by him under a deed of trust or other instrument. "

Clause 5 provides for the vesting of all evacuee properly in the custodian. The custodian has to issue a notification under Clause 6 detailing the properties so vesting in him and any person claiming any right or interest in the property can then file an objection under Clause 8 before the custodian. The custodian decides the objection after enquiry according to rules either rejecting it or accepting it. The party aggrieved by the rejection of his claim can file an appeal under Clause 30 but subject to the decision of the appeal, the earlier decision is final. Sub-clause 6 of Clause 30 provides that the decision cannot be called into question in any suit, application or execution proceeding. Lastly, we have Clause 31 barring jurisdiction of Civil Courts as below :"31 -- (1) Save as otherwise expressly provided in this Ordinance, no civil court shall have jurisdiction : (i) to entertain or adjudicate upon, any question whether any property is or is not evacuee property or whether an evacuee has or has not any right or interest in any evacuee property; or (ii) to question the legality of any action taken by the Custodian; or (iii) in respect of any matter which the Custodian is empowered by or under this Ordinance to determine. "

( 7 ) IN Act 31 of 1950, the definition of "evacuee property" is differently worded but the change is not material for the purposes of the present case. The scheme of vesting has been altered. Under the Ordinance the vesting was automatic

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