- (1.) Determination of the scope of Section 46 of the Administration of Evacuee Property Act arises in this case. Under that Section the jurisdiction of civil courts is barred if any question whether the property or any right to or interest in any property is or is not evacuee property arises. Under Section 2(d) "evacuee" is defined to mean a person who has left India on account of civil disturbances on or after the 1st day of March, 1947 and "evacuee property" means any property of an evacuee. Therefore the jurisdiction of the Custodian is (i) to determine whether the property is evacuee property, which means that the Custodian has to determine whether the person who owned the property has become an evacuee and (ii) whether he did own the property. In my opinion it is not for the Custodian to trespass on the jurisdiction of civil Courts and start determining questions which should be decided by the civil Court unless there are specific words to the contrary which is clear from the wording of Section 9 of the Civil Procedure Code.
(2.) Therefore the Custodian had no jurisdiction to decide the question whether the sale which had taken place in 1939 was an invalid sale because of certain provisions of Hindu Law. Apart from the fact that the heirs of Hari Ram and Har Piari did nothing till the alienees had gone to Pakistan and, therefore, no proper proof could be given as to the sale being for necessity, the question is not within jurisdiction of a Custodian.
(3.) In this case Hari Ram and his aunt Har Piari sold the land in dispute on the 14th of March, 1939 for a sum of Rs. 8,000/-. Hari Ram's son, Kailash Chander, moved the Assistant Custodian about ten years later for cancellation of the sale, which was cancelled and subsequently, on review, the order of cancellation was set aside and this order of cancellation has been upheld by the Deputy Custodian General and in my opinion rightly.;