1989 PLP 1963 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to examine whether the decision of the Chairman Evacuee Trust Property Board dated 15‑12‑1978 followed by that of the Government of Pak1stan dated 29‑6‑1978 and A that of the High Court in Constitution Petition dated 21‑2‑1983 holding the disputed property to be an evacuee trust property attached to religious, educational or charitable institution was correct m law as this question had arisen in a number of other cases as well.

2. The property, a house No. E/2673, Hyderabad, came up for disposal under the Displaced Persons (Compensation & Rehabilitation) Act, 1958, as an evacuee property on different occasions. It was finally auctioned on 19‑7‑1968 in favour of one Chajjo with whom the appellant Mst. Nafees Begum associated and ultimately obtained a P.T.D. on 19‑6‑1974. The appellant also proceeded against the occupant of the property under the Rent Restriction Ordinance. The Chairman, Evacuee Trust Property Board was moved separately by the Ass1stant Admin1strator, Evacuee Property Hyderabad as well as Mst. Nafees Begum for getting the status of the property declared. The Chairman after considering the record and the other material before him held as hereunder by order dated 15‑12‑1976:‑ I, therefore, declare the property as evacuee trust and order that the transfer documents issued in Mst. Nafees Begum's name should be cancelled and the property taken over by the Board."

3. The appellant preferred a Revision Petition under section 17 of the Act XIII of 1975 which was disposed of by a Joint Secretary of the Government of Pak1stan, Min1stry of Religious Affairs and Minority Affairs. He concluded as hereunder:‑ "The only conclusion that can justifiedly be drawn is that the property is doubtless a religious trust property. I, therefore, find no reason to differ with the impugned order of the learned Chairman, E T P, Board and dismiss the petition."

4. Finally, the matter was brought before the Sind High Court by a Constitution Petition. The learned Judge by a detailed order examining every aspect of the argument presented before him held as hereunder:‑ "In any case, the impugned order dated 29‑6‑1978 of respondent No. 5 shows that the admitted position of the petitioner was that the said property was a private trust property, and in the face of this admission coupled with the fact that this property was described as a "Tikano" the property has to be evacuee trust property. It may be observed here that the view of this Court is that the words "religious trust" in section 4 (2) of Displaced Persons (Compensation and Rehabilitation) Act, 1958 embrace both private as well as public religious trust (reference P L D 1978 Kar. 252 Evacuee Trust Committee v. Muhammad Ismail). 1n section 2 (d) of the Evacuee Trust Properties (Management and Disposal) Act, 1975, "evacuee trust property" has been defined to mean the evacuee trust properties attached to charitable, religious or educational trust or institutions or any other properties which form part of the Trust Pool constituted under that Act. Section 7 of that Act provides for constitution of a Trust Pool cons1sting inter alia of all evacuee trust property which immediately before the commencement of that Act formed part of the Trust Pools constituted under the Act and any evacuee property declared under section 8 to be evacuee trust property. Even if the property in question is private religious property, it will fall within the definition of evacuee trust property."

5. The appellant has not appeared to argue the appeal but has submitted written arguments supported by photostat of the case law referred to in the arguments.

6. From the concurrent finding of all authorities and the submission of the appellant as well, it appears that it is accepted that there ex1sted a private trust with regard to the property. This is borne out by the Survey Record wherein the following entries ex1st:‑ "Date Transaction New holder (H) Lessee (L) Encumbrances (E) 11‑1‑41 As per will of Bawa Purdan Chell of Bawa Dharamdas Bawa Dharamdas as And Stts. SCCO's Manager of "Private Trust" order dated 6‑11‑41 He has no right to sale or mortgage gift or otherwise."

7. The decision of the High Court relied upon by the appellant was reversed in Letters Patent Appeal and is reported as Evacuee D1strict Trust Committee Hyderabad v Mohammad Ismail and 2 others P L D 1978 Kar. 252, wherein it was held as hereunder:‑ "Applying these rules of interpretation there can be no measure of doubt that the expression "religious trust" would include in its ambit both private and public religious trusts. It is however, permissible under the rule of ejusdem generis to construe the meaning and scope of words used in a statute with reference to other words in the same statute. This rule is attracted in a situation where the use of a general word follows other less general terms. In such a case the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words. Unless therefore, there is a genus or category there is no room for the application of the ejusdem generis doctrine. The second essential pre condition for the application of the doctrine is that the general word must follow and not precede, other less general terms. The rule contained in this doctrine is not applicable to the present case, firstly because the term "religious" is not used as a genus in comparison to the term "charitable" and "educational"; and secondly the word "religious" in the context of the enactment under consideration, does not follow the other words but is placed in between the words "charitable" and "educational":"

8. A copy of Will executed by Sawami Dharamdas and reg1stered on 7‑11‑1940 clearly establishes that the property in dispute was attached to a religious and charitable trust and the right of enjoyment of the property and its transferability all was subordinate to the interest of the trust. This evidence was sufficient in law to sustain the conclusions drawn by the Settlement Commissioner and affirmed on appeal by the High Court.

9. The protection available to the transferees of such properties under section 10 of the Act XIII of 1975 would in terms be not available to the appellant C because Permanent Transfer Deed had not issued prior to June, 1968 as was mandated by the law.

10. On the facts of the case and for the foregoing reasons we find no merit in the appeal which is hereby dismissed leaving the parties to bear their own costs. MA.K/N‑187/S Appeal dismissed.