Tek Chand, J.
1. The only question which calls for decision in this appeal is whether the Civil Courts have jurisdiction to try the dispute. This suit has been instituted against three defendants; the State of Punjab, the Custodian Evacuee Property and one ShriSatya Pal who was Sub Inspector in the Rehabilitation Department. The suit is for the recovery of a sum of Rs. 6191/-. Both the suit and the appeal have been filed in forma pauperis. The plaintiff is a displaced person from West Punjab and on 13th of August, 1047 he had purchased a maning concern of furniture and auction shop belonging to a muslim evacuee A. S. Khan Warsi in Ambala, for Rs. 1150/-.
It is alleged in the plaint that he invested Rs. 2,000/- in the business which he was carrying on till 14th of October 1947 when his shop was illegally sealed by an Inspector of Custodian Department under the orders of the Assistant Custodian, Evacuee Property, Ambala. It is then stated that the plaintiff submitted his claim under Sec. 5 of the East Punjab Evacuees (Administration of Property)Act 1947 to the Deputy Custodian for confirmation of the sale of the business by A.S. Khan Warsi in plaintiff's favour.
As the claim was accepted by the Deputy Custodian on 1st of April, 1948 and this order of his had become final and conclusive under Section 5(B) of the above mentioned Act, the plaintiff contends, that his title to the goods can no longer be challenged. The plaintiff then applied on 7th of April 1948 to the Cantonment Magistrate, who is also the Assistant Custodian, to remove the seal and allow him to carry his business in the shop which had been allotted to him but the seal was never removed. On 30th of May, 1948, the plaintiff learnt that defendant No. 3 had gone to the shop; he removed the seals and after breaking open the plaintiffs lock, the goods were removed. When requested by the plaintiff, defendant No. 3 refused to deliver possession of the same to him despite the sale having been confirmed by the Deputy Custodian by his order dated 1st of April, 1948.
It was maintained that the goods had been removed illegally and in bad faith to the Malkhana of the Custodian Department and later on they were reported to have been sold by the officers of the Department The plaintiff claims that he has suffered (loss of ?) a sum of Rs. 4291/- on account of loss of goods. He also valued loss of business at Rs. 1500/- and the damage and the deterioration of goods at Rs. 400/-. Thus, under these three heads the plaintiff claims a sum of Rs. 6191/-, and has claimed that a decree for the recovery of this amount may be passed in his favour with costs. This suit has got a brief history which may be considered. This suit was first filed on 14th of December, 1948 and the pleas taken were traversed by the defendants giving rise to two preliminary issues :
(1) Whether the plaint discloses any legal cause of action against defendant No. 1 the East Punjab Province and defendant No. 2, the East Punjab Custodian Evacuee Property?
(2) Whether this suit is barred by reason of Section 31 of the Ordinance 9 of 1949?
The Sub-Judge by his order dated 21st of November, 1949 came to the conclusion that in view of the provisions of Section 31, the Civil jurisdiction is barred. The plaint against defendants Nos. 1 and 2 was rejected but the suit could proceed againstdefendant No. 3 in respect of claim for damages to the extent of Rs. 1900/- till it was proved that he had acted under orders of the Assistant or Deputy Custodian. From this decision the plaintiff went up in appeal to the High Court (R. F. A. No. 253 of 1951) and there the plaintiff was permitted to file an amended plaint and the case was remanded for a fresh trial on the amended plaint by order of the Bench dated 24-12-1952. When this matter came up in the trial Court on remand, the Senior Sub-Judge, Ambala, framed the following preliminary issue :
'Whether the Civil Court has jurisdiction to go into the case?'
No witnesses were examined by the parties and the trial Court held that the Civil Court had no jurisdiction to try the case as framed unless the plaintiff gets the matter determined that the property in question was not an evacuee property. The plaintiffs suit was consequently dismissed hut the parties were left to bear their own costs.
2. The only question that has to be examined at this stage is whether in view of section 46 of the Administration of Evacuee Property Act 31 of 1950, the Civil Courts' jurisdiction is barred in respect of the subject-matter of the suit. This section runs as under:
'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
(b) * * * *(c) to question the legality of any action taken by 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.'
Our attention has been drawn to two judgments of this Court where this matter was considered. Harnam Singh J. in Mohd. Saddiq Barry v. Mohd. Ashfaq, AIR 1954 Punj. 87, said that the trial by the Civil Court of the question whether the property In suit is or is not evacuee property is barred and the proper order to be passed In such case is to direct the adjudication of the question by the Custodian and to stay the disposal of the suit pending the adjudication of that question by the Custodian. Later on, a Division Bench of this Court examined the applicability of the above provision in Parkash Chand v. Custodian Evacuee Property, Jullundur, AIR 1959 Punj. 64. In that case It was held that where a suit in substance invites the Civil Courts to decide whether certain Muslims had or had not become evacuees and whether their properties were or were not evacuee property then in view of the plain meaning of section 46 of the Administration of Evacuee Property Act, the Civil Courts cannot go into and decide these questions.
3. The argument which has been advanced by the learned counsel for the plaintiff-appellant is that the question whether the goods of the plaintiff are or are not evacuee property, had previously been decided in plaintiffs favour by the Deputy Custodian, when the sale of the business by A.S.Khan Warsi in plaintiff's favour was confirmed. The confirmation of this sale was, according to the learned counsel, tantamount to a decision by the Custodian that the subject-matter of this suit was not an evacuee property. His grievance is that the plaintiff had specifically taken this plea in para 5 and, therefore, he should have been permitted to lead evidence and prove his allegation and that in no case his suit should have been dismissed.
4. There seems to be force in this contention. What is barred under Section 46 is the right of the Civil Court to adjudicate upon any question as to the property to suit or any right or interest in it is or is not evacuee property. This matter is left for determination by the Custodian. If in a particular case such a determination has been made by the Custodian and he has come to conclusion that a particular property or part thereof is not evacuee property, it will then be for the Civil Courts to go into the claim of the plaintiff and to determine the extent to which he has substantiated his right in respect of the non-evacuee property in suit.
Apart from the property being evacuee or otherwise, there are other attendant matters which call for scrutiny and adjudication and in respect of them the jurisdiction of the Civil Court has not been taken away. The proper course for a civil Court in all such cases is to stay the suit and ask the Custodian to decide the matter before proceeding further, if the plaintiff is entitled to any relief thereafter, vide AIR 1954 Punj. 87, and Amtabai Kamruddin v. Daudbhai Akbarali, AIR 1959 M. P. 13. The judgment of the trial Court of dismissal of the suit cannot be sustained on any assumption. If the other contention of the plaintiff prevails, then it has to be examined whether the Custodian and in this case the Deputy Custodian has declared the property in question not to be evacuee property.
5. Reference has also been made to sections 5-A and 5-B of the East Punjab Evacuees Administration of Property Act 14 of 1947. The former section prohibits certain transactions in the nature of sale, mortgage, pledge, lease, exchange etc. in respect of any property made by an evacuee or by any person in anticipation of his becoming an evacuee etc. Sub-section (2) requires the making of an application for confirming such transfers. The Custodian under this provision was required to hold a summary enquiry and to confirm the transaction absolutely or conditionally or to reject it. It is the case of the plaintiff that the District Magistrate, Ambala, who was acting as the Deputy Custodian, had, by his order dated 1-4-1948, on the application of the plaintiff under Act 14 of 1947, accepted his claim with respect to the furniture purchased by him from A. S. Khan Warsi and had allowed the plaintiff to remove the goods which the plaintiff accordingly did.
The order passed under section 5-A by the Deputy Custodian is liable to review on appeal. Subject only to the decision, on such appeal, if any, the order so passed becomes final and conclusive. The contention of the plaintiff, is, that tbe order of the Deputy Custodian of 1-4-1948 has not undergone any modification) as no appeal had been filed from it, The plaintiff's above plea has been traversed in the written statement by the defendants. This therefore, was an important matter on which the parties had joined issues. If the plaintiff's contention had prevailed, the trial Court should have proceeded with the suit as in that event the requirements of section 46 had been complied with. If, on the other hand, the plaintiff had failed in substantiating his plea, ft would then have been the duty of the trial Court to have stayed the suit and to have asked the Custodian to decide the matter before proceeding further.
The question whether the Deputy Cusodian had found the property to be non-evacuee had thus a vital bearing on the result of the suit. This question unfortunately has not been gone into. It was, therefore, necessary for the trial Court to have given a decision firstly on the question whether the goods, which formed the subject-matter of the suit, had been declared not to be evacuee property by the Deputy Custodian and secondly if that order had become conclusive between the parties in the light of section 5-B. We, therefore, set aside the judgment and decree passed by the trial Court and remand the case for trial on the following issues:
1. Whether the question that the suit property or any right or interest in it is or is not evacuee property, has been previously adjudicated upon by the Deputy Custodian and it has been found not to be an evacuee property?
2. Whether such adjudication, if any, has become conclusive between the parties?
6. The parties are at liberty to lead evidenceand file documents in support of their respectivecontentions. If the trial Court finds that the DeputyCustodian has previously held the, property in question not to be an evacuee property and this orderhas not been modified in appeal to the detrimentof the plaintiff, then the trial Court has jurisdictionand it should proceed to determine the entire caseon merits.
If, on the other land, the trial Court conies to conclusion that no such decision has been given as to the evacuee or non-evacuee nature of the property, then it should stay the suit till its character is finally determined by the Custodian. Again, if it comes to conclusion that the property has, in fact, been found to be evacuee property in entirety or in part, then it should dispose of on that basis the other questions arising in the suit.
7. The case is thus remanded under Order 41, Rule 23 Civil Procedure Code and the trial Court is directed to re-admit the suit under its original number in the register of civil suits and proceed to determine the suit as indicated above. It is to be regretted that this suit, which had been filed in 1948, is still at its preliminary stage. The trial Court is directed to give to this suit precedence and to dispose it of expeditiously.
8. The court fee paid by the appellant shall be refunded. The costs of this appeal shall abide the event.
P.C. Pandit, J.
9. I agree.