1990 PLP 143 (SCMR)

7. Ch. Khalilur Rahnran, Senior Advocate, lie learned counsel representing respondent No. 1, has also referred to tile old record in order to establish drat the properties in dispute were in fact the personal properties except for one particular portion of it, not in dispute between tile parties, which was recorded as the 'Sitla Temple'. As regards the earlier litigation under section (xi) of the Code of Civil Procedure, the learned counsel contended that it could not operate as res judicata because the parties were different and further because the parties was not finally decided as the pending appeal (R.F.A. No. 3Ut)/1943) in tile High Court was held to have abated. In support of this proposition tile learned counsel has referred to the decisions in Obedur Rahman and others v. Darbari Lal and others (A I R 1927 Lah. 1), Lachhman and others v. Bansi Lai and others (AIR 1931 Lah.79(2) and Abdul Ghafoor v. Chief Settlement Commissioner and another (1985 S C M R 464)_ It has been tile contention of these occupants that the record does not establish directly any dedication of the properties for religious or charitable purposes and the evidence produced or brought on record is by all standards insufficient to establish so. The properties in the absence of such evidence must be held to be evacuee properties transferable under the Act.

8. In the first place the enquiry envisaged under section 4, subsection (3) of the Act is a factual enquiry which is not dependent on the legality and validity of the trust created at its inception. Subsections (2) to (4) of section 4 of the Act provide as hereunder:‑ "(2) Immovable Evacuee Property attached to any charitable, religious or educational trust or institution and such other evacuee property as may be specified in this behalf by the Central Government by Notification in the official Gazette, shall not form part of the compensation pool constituted under subsection (1). (3) 1f a question arises whether an evacuee property is attached to a charitable religious or educational trust or institution or not, it shall be referred to Chief Settlement Commissioner whose decision thereon shall be final and shall not, except as provided in subsection (4), be called in question in any Court: provided that no order under this subsection shall passed without giving the persons interested a reasonable opportunity of being heard. (4) Any person aggrieved by an order under subsection (3), may, within thirty days of the order, prefer an appeal to the High Court."

9. The object of the law is to find out and determine the factual status of the property as on the date of independence and its use as such, and not necessarily to go into antiquity and trace whether at its inception the trust was created strictly in accordance with law applicable to the parties or not. To that extent the learned counsel for the appellants may be justified in asserting that it is predominantly a factual inquiry held by the Administrative Officer in the first instance. However, the provision for an appeal without any qualification both on fact and law to an established superior Court under subsection (4) of section 4 negates the purely administrative character of the proceedings. They have to be treated as quasi‑judicial and to be dealt with accordingly.

10. The decision in the civil suits filed under section 92 of the Code of Civil Procedure has not, it appears, received proper attention in the High Court. It is true that such a decision would not operate as res judicata because the parties are different and the appeal had abated without a decision on merits. Order XXII, Rule 9, sub‑rule (1) of the Code of Civil Procedure provided as hereunder:‑ "Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action." It was after 1972 Law Reforms that a change was brought about when a provision was made that there shall be no abatement on account of death of a party. It was a consequential change. In the present case, as the abatement in R.F.A. No. 300 of 1943 had taken place in 1946, the law as then in existence would hold the field.

11. In the two Civil Suits Nos. 18 of 1941 and 23 of 1941, the property in dispute was described as hereunder:‑ "In the city of Lahore, on the southern side of the Circular Road, between Shahalmi and Lohari Gates there is a temple, known as Shri Shitle Mandir (Temple or shrine of the goddess of smallpox). These suits have been filed, under section 92 of the Code of Civil Procedure, with respect to that temple and certain properties which are given in the schedules, attached with the plaints and which are alleged to appertain to the Mandir." Issues Nos. 2 and 4 were to the following effect:‑ "

2. Is Sitla Mandir a public, charitable or a religious trust within the ambit of section 92, C.P. Code? O.P." "

4. Is the property in dispute besides the temple proper, attached to the mandir and is it a public religious or charitable trust within the meaning of section 92? O.P." On Issue No. 2, the trial Court held as under:‑ "The mandir is a very old institution and its origin goes back to the time of the Moughal Emperors. A note is appended to the pedigree‑table which was prepared during the settlement operations of the year 1868, a copy of relevant extract of which is Ex. P/154. In this note it is given that the Sitla Mandir was then considered to be in existence for the last 800 years. This fact is corroborated by the statement of Mahant Kirpal Gir (copy Ex. P. 85), which he made on the 29th August, 1855 in connection with the mandri proceedings of the land alleged to be attached to the Sitla Mandir. In this statement he said that the Sitla Mandir was an old institution and that it was constructed during the time of Moughal Emperors (Badshahi Ahid). The word 'Badshahi Ahid' is used with respect to the time of Moughal Emperors and not to the time of Sikh reign. If it had been constructed during the time of Maharaja Ranjit Singh then the words would have been "Ahid Sarkar or Ahid Maharaja Ranjit Singh," Thus there is no direct evidence of dedication but the circumstances to be gathered from the evidence are such that a very strong presumption of dedication to the public arises ................................... This shrine is described at page 206 of the history of Lahore by Sheikh Mohd Latif, District Judge, published in 1892, as below:‑ "The shrine is dedicated to Sitla Mat or goddess of smallpox. It is situated on the side of the Circular Road outside the city, between Shahalmi and the Lohari Gates, and is a place of great worship to the Hindus, especially the mothers of children afflicted with small pox. They consider it of paramount importance to please the goddess in order to secure her favour for such children. Consequently Sittla Mai or the smallpox mother, is worshipped and oblations are laid before it and offerings made. When a child is cured of smallpox parents come there to make presents in money and sweetmeats. In the Mandir are the images of Deviji and Shiviji Maharaj which are worshipped. The other objects of worship in the shrine arc Pipai tree and Jand tree around which a pacca, platform has been built, with the image of a loin of stone. There are cells and rooms for the accommodation of Sants and Sadhus and altogether the institution is in a flourishing condition. .. According I hold that this temple is being worshipped by the. Hindus of Lahore since times immemorial without any let or hindrance; that the worshippers make offerings to the Sitla goddess at the time of worship and that people assemble in the Mandir in large numbers at the time of fares and Melas." As regards Issue No. 4, the properties attached to the temple, the full description of it was given in the following words:‑ "The properties in dispute are given in Schedule 'A' appended to the plaint No.18 of 1941. They are as below:‑ "About 125 shops and houses single‑storeyed to three‑storeyed and other pieces of land surrounded as below:‑ North : by Circular Road South : by Lady Aitchison Boarding House East : Takia Mian and Garden of Rattan Chand. West : Road that leads from Anarkali to Mayo Hospital. (2) A temple under the door of Shahalmi Gate. (3) Temple of Siri Kalka Devi near the Haveli of Kanwar Nau Nihal Singh inside Mori Gate. (4) The house situate in Chiri Maran Street inside Mori Gate, Lahore." The following findings were recorded with regard to these properties:‑ (i) The documentary evidence shows that originally the properly yielded very little income. As the city of Lahore grew in population 1;ie value of the property increased. Originally the object of the property was to feed Sadhus and Faqirs, give place residing to the wayfarers and maintain the Mandir. Afterwards, as is clear from the will of Prem Gir, the objects attached to the mandir grew in number. They were Gowshala, Ayur Vedic Maha Vidyala, Maha Vidyala, Karam Kand, charity to the widows and orphans and free kitchen for travellers and Sadhus. The plan Exhs.D/1, D/2, and D/3 show that the property belongs to the Sitla Mandir. (ii) The history of the institution has been traced by me under issues 2 and 4 and I have held that the temple is a public, religious and charitable institution and that the properties in suit are attached to it. I arrived at this conclusion after referring to the admissions of the predecessors of the defendant. The defendant became the Mahant of the institution under the will, a copy of which is Ext. P/9U. In this will it is clearly given that the property is attached to the Mandir. It means that the property was not the private property to mahant Prem Gir and was a public institution. The defendant has taken the property under the terms of this will, therefore he cannot repudiate the nature of the property which is given in the will. If any authority is needed on this point it is A.I.R. 1939 Privy Council 201, wherein it has been held that a person claiming under a will cannot repudiate the statements of the testator in the will about the nature of the property disposed of. After ascending the Gaddi the defendant got executed in his favour the rent deeds Exts. P/27, P/89, P/26, P/34, P/117, P/106 and P/28. In all these rent deeds the properties were mentioned as properties owned by Sitla Mandir.'

12. On the 6th of November, 1943, the trial Court held the properties to be attached to the charitable, religious and educational institution, removed the trustee, and made arrangements for the orderly functioning of the trust. A scheme of management was then drawn up on 17‑11.‑1943. A Mahant was appointed whose name was Parkash Nand and an official receiver was appointed to look after the property, pending the appeal in the High Court which was dismissed on 21‑11‑1940 as having abated. It was such a state of affairs which existed at the time of independence. The properties in dispute were clearly identified, dealt with and legally treated as trust properties of the description mentioned in section 4 of the Act.

13. Our conclusion after going through the records and the material as old as 1855 leads to no different conclusion. In this background and on these facts it could not be held that these properties were not attached to the educational or charitable institutions as required by law.

14. We accept the appeal, set aside the judgment of the High Court and restore that of the Settlement Commissioner. No order as to costs. A.A./E‑16/S Appeal accepted.