Property Not Declared Evacuee Before May 1954 Cannot Be So Declared Subsequently Under Section 7A.

The suit property, consisting of three shops in Mangrol, was originally owned by Memon Musa Hussain Chhapra

His daughter, Bai Mariyam, inherited the property from her mother, Bai Fatma (widow of the owner), who migrated to Pakistan around 1957-58 and died there in 1959

Mariyam sold the property to the original plaintiff, Bai Ayesha Aba, via a registered sale deed on 07.10.1961

In 1973, the plaintiff successfully challenged an earlier attempt to declare the property as "enemy property" in Civil Suit No. 459 of 1973, where the court held the property was not evacuee property

Despite this, the Collector (Defendant No. 2) issued a notice on 15.03.1978 and an order on 31.05.1978 declaring the property as "evacuee property" under Section 8(2) of the Administration of Evacuee Property Act, 1950

The Trial Court and First Appellate Court both decreed in favor of the plaintiff, setting aside the Collector's order

Whether properties automatically vest in the Custodian under Section 8(1)(a) such that no notice is required to declare them as evacuee property?

Whether the sale deed in favor of the plaintiff was invalid because the property had already vested in the Government?

Whether the Civil Court had jurisdiction to decide if the property was evacuee property in light of the bar under Section 46 of the Administration of Evacuee Property Act, 1950?

The court primarily applied Section 7 and Section 7-A of the Administration of Evacuee Property Act, 1950, which provides that no property shall be declared as evacuee property on or after 07.05.1954

It relied on the principle of res judicata under Section 11 of the CPC regarding findings in a previous suit between the same parties

It further applied the precedent from Dr. Rajendra Prakash Sharma v. Gyan Chandra and others (1980) 4 SCC 364, which establishes that if the power of the Custodian to declare property as evacuee property is extinguished by Section 7-A, the jurisdiction of the Civil Court is not barred by Section 46

The court reasoned that since no proceedings to declare the property as "evacuee" were initiated or pending prior to the statutory cutoff date of 07.05.1954, the authorities lost the jurisdiction to make such a declaration thereafter under Section 7-A

Evidence from the prior 1973 litigation established that the owner, Bai Fatma, was in India until 1957-58, making an "automatic vesting" prior to 1954 legally impossible

The court held that the Collector's 1978 notice was a nullity as it was issued decades after the power to declare evacuee property had expired

Consequently, because the declaration was without jurisdiction, the statutory bar on Civil Court jurisdiction under Section 46 did not apply

The court also found the state’s claim barred by res judicata due to the 1978 judgment which had attained finality

It held that the property did not automatically vest in the Custodian and the Collector’s order was void and without jurisdiction

The defendants were directed to handover vacant possession of the suit property to the legal heirs of the original plaintiff and deposit all due amounts with the Trial Court within 90 days

All interim stays were vacated