1999 PLP 2068 (MLD)

Aamir Sohail for Respondent. Date of hearing: 7th October 1998. In this Constitutional petition orders, dated 11-7-1978 passed by the Chairman, Evacuee Trust Property Board, Lahore and dated 23-12-1991 of the Additional Secretary to the Government of Pakistan, Ministry of Minorities Affairs, Islamabad have been challenged.

2. Brief facts of the case are that on a reference filed by petitioner under section 8 of Evacuee Trust Properties (Management and Disposal) Act, 1975, the Chairman, Evacuee Trust Property Board, Lahore, declared property bearing No.17/145/50 comprising Khasra No. 142 to be evacuee trust property on 11-7-1978. The petitioner filed Writ Petition No.370-R of 1983 against the said order which was allowed by the High Court vide order, dated 19-2-1984 whereby case was remanded to Federal Government for its fresh decision in accordance with law. The case was taken up in the light of the remand order by respondent No.1 who vide order, dated 23-12-1991 upheld the earlier order, dated 11-7-1978 of respondent No.2.

3. Learned counsel for the petitioner contends that mere devolution of property from Guru to Chela is not necessarily an evacuee trust property. In this behalf, he has relied upon an unreported judgment passed by this Court in F.A.O. No.87 of 1968 titled Muhammad Khurshid v. The Chief Administrator of Auqaf, West Pakistan Lahore on 12-7-1972. He has referred the documents on the file in support of his contention that it was not an evacuee trust property and the respondents have erroneously answered the reference by holding it as evacuee trust property. Learned counsel for the respondents on the other hand, has supported the impugned orders and argued that the evidence on the record clearly establishes that disputed property is evacuee trust property and has rightly been so declared.

4. I have heard the learned counsel for the parties and gone through the record. The Jamabandi for the year 1893-94 (Exh.R/C) shows Mahant Devki Guru Chela Anat Guru as owner of the property in dispute. Subsequent Jamabandi for the year 1913-14 (Exh.R.A./A) indicates Barhma Nand Guru Chela Mahant Devkinand as owner, which entry continued up to 1946-47. However, no positive finding has been recorded by respondent No.1 as to whether it was the personal property of original owner or it was a trust property, and when trust if any was created by him. According to the revenue record the property was leased by one Barhma Nand evacuee to a firm Muhammad Din Harnam Dass Government Contractor vide lease deed, dated 9-9-1942. There is no direct evidence on the record as to whether it devolved from Guru to Chela as dismissed and on account of being test property. The fact that the property in dispute was leased out indicates that it was not being used as an Institution for religious purposes. It was laid down in the judgment referred above by this Court as under: -- "To constitute a valid trust of a public, charitable or religious nature, it is necessary to ascertain the author or authors of the alleged trust. Next the intention to create a trust is to be indicated by words or acts with reasonable certainty. The purpose of the trust, the trust property, and the beneficiaries must be indicated and in such a way that the trust could be administered by the Court if required." The impugned orders have not been passed keeping in view when the trust was created the nature of the trust, intention of its creator beneficiaries and the objects of creating the trust. The finding that the property in dispute was inherited by Chela from his Guru would itself not constitute it a trust property, To find out as to whether it is trust property detailed scrutiny of the revenue record prior to 14-8-1947 is necessary. Detailed examination of evidence and the record to find out the nature of the property does not appear to have been conducted by the respondents while passing the impugned orders. The constitution of the trust, the terms under which it was created by the evacuee owner for the first. time are not reflected from any of the judgments placed on the record. If a trust was really created by the evacuee owner, it must find mention in the revenue record with reference to the time when it was created. The name of its founder, objects, manager and beneficiaries are not ascertainable from the present record. The record referred by respondents in the impugned judgments and appended with this petition does not show that it was a trust property. The entries showing devolution of property from Guru to Chela themselves are not sufficient to establish that it was trust property in the absence of any such reference in the Revenue Record prior to partition. No such effort has been made by the respondents to ascertain author of trust. The basic record essential for determination of the status of the property is not before me, therefore, I am constrained to remand the case to respondent No.1 after setting aside impugned orders with the direction to examine the entire relevant record in relation to the creation of the trust, if any as observed above and to decide the case afresh after hearing the parties. The writ petition is disposed of in the above terms H.B.T./M-920/L Order accordingly.