1. On 25-1-1950, Mohammad Saddiq Barry instituted Civil Suit No. 77 of 1950 for declaration that he was 'mutwalli' of the property in suit. In that suit the Custodian Evacuee Property, was impleaded to be a party.
2. In the written statement the Custodian pleaded that the property of which the plaintiff seeks to be a 'mutwalli' was evacuee property.
3. Finding that Civil Courts have no jurisdiction to entertain or adjudicate upon the question whether the property in the suit is or is not evacuee property the Court of first instance rejected the plaint under Rule 11 of Order VII of the Code. From the decree passed by the Court of first instance the plaintiff appealed under Section 96 of the Code.
4. In dismissing the appeal the Court has treated the decree passed by the Court of first instance to be a decree dismissing the suit.
5. From the decree passed on appeal Mohammad Saddiq Barry appeals under Section 100 of of the Civil Procedure Code.
6. Now, the relevant portion of Section 46 of the Administration of Evacuee Property Act provides that save as otherwise expressly provided in the Act, no Civil Court shall have jurisdiction 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. Clearly, the trial by the Civil Court of the question whether the property in suit is or is not evacuee property is barred. That being the position of matters, the proper order to be passed by the Court of first instance was to direct the adjudication of the question specified in Section 46(a) of Act No. XXXI of 1950 by the Custodian and to order the staval of the disposal of the suit pending the adjudication of that question by the Custodian.
7. For the foregoing reasons, I set aside the Judgments and the decrees passed by the subordinate Courts and remand the case to the Court of first instance under Order XLI, Rule 23 of the Code of Civil Procedure.
8. In deciding the suit the Court will remit for adjudication to the Custodian the question whether the property in suit is or is not evacuee property. On the adjudication of that question by the Custodian, the Court will proceed with the trial of the suit on the basis that the decision given by' the Custodian is binding upon the Court
9. Parties are directed to appear before theCourt of first instance on the 5th of October, 1953.