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 a

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