1975 PLP 423 (SCMR)

‑‑ S. 4(3)‑Decision of High Court on question whether property way or was not trust property after considering evidence‑A decision on question of fact‑Finding being concurrent with finding of Settlement authority could not be assailed in Supreme Court. S. M. Abbas, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing : 5th March 1973: HAMOODUR RAHMAN, C. J.‑This is a petition for special leave to appeal ‑from the judgment and order of a learned Single Judge of the Sind & Baluchistan High Court in an appeal under subsection (4) of section 4 of ,he Displaced Persons (Compensation and Rehabilitation) Act, 1958, whereby ;he Settlement Commissioner with powers of the Chief Settlement Commis sioner. South Zone, has held properties hearing survey Nos. 965 and 966, corresponding to Custodian Nos. II‑A/355, 356 and 357, located in Ward 'B' of Nawabshah town, to be properties belonging to a religious and .:charitable trust. These two survey numbers adjoin survey Nos. 934, 935, 938, 956 to 964 and 967 to 969, and all of them are surrounded by a common compound wall. Within this boundary is also situated a temple on survey No. 935 and a Dharamshala on survey No.

966. A school too is located on a part of the .property within the compound wall. This school was, prior to Partition, known as Kanwar Model School, but, after Partition it was replace? by a Primary and a High School run by the Islamic Education Society. Sub sequently, a college by the name of Sachal Sarmast College, was also started in buildings constructed on some of the survey numbers within the compound wall and these educational institutions are still functioning In the same premises. Notwithstanding this, survey Nos. 965 and 966 were jointly allotted to the petitioner and his nephew, Juma, on the 6th March, 1954. A P. T. O. was issued in favour of the petitioner on the 21st October, 1959. There after, the petitioner paid the entire evaluation price but, on the 4th May 1960, the Settlement Commissioner cancelled the P. T. O. He went in review and the Settlement Commissioner reconsidering his order, again transferred the property to the petitioner on his N. C. H. form on the ground that the ‑premises in question was being used as an inn even prior to Partition, it was not shown in the list of trust properties maintained by the District Judge, although the property was shown to be in the charge of a 'panchayat' which had become evacuee. This order was challenged in the writ jurisdiction in the High Court without any success but in the meanwhile, the law was changed and power was given to the Chief Settlement Commissioner to determine the question as to whether a property was an evacuee trust property. After the change of the law, the Evacuee Trust Committee, Nawabshah, moved the Chief Settlement Commissioner to declare the survey Nos. 956 to 969 including the properties in dispute, to be evacuee trust properties This was allowed 3,n the 17th November 1969, and it was against this order that the petitioner went up In appeal to the High Court. High Court has, after au elaborate examination of the evidence, concurred with the findings of the Settlement Commissioner and dismissed the appeal. The petitioner now seeks special leave to appeal. The learned counsel appearing in support of this petition has firstly sought to contend that and the amended law, the Chief Settlement Commissioner could not reopen matter which had already become final. Hence, the Chief Settlement Commissioner, under the amended law, had no power to set aside the earlier order of the Settlement Commissioner dated 25th June 1960, whereby the transfer in favour of the appellant had been restored. We are unable to agree that this was a case of retroactive application of the law. The new law came into force on the 17th December, 1964 and the application of the trust committee was made on the 24th June 1966, to determine this question regarding the status of tae property. Prior to this, it has to be pointed out, there was no jurisdiction in the settlement Authorities to determine such a question. In the circumstances, it cannot be said that the Chief Settlement Commissioner was reopening any question which had already been decided by any competent authority. Learned counsel next contends that after a P. T. O. has been issued the property goes out of the compensation pool. This argument is ",holly misconceived. The property is presumable even after the issuance of the P. T. O. In any event, if the property was evacuee trust property, no C ‑P. T. O. in respect thereof could have been validly issued. We have heard the learned counsel at length and it seems to us that the High Court, in appeal, has decided a question of fact, namely, as to whether the property was a trust property or not with reference to the evidence mainly documentary and such a finding of fact, which has now become a concurrent finding of fact, cannot be assailed in this Court. We have carefully perused the judgment of the High Court acid have come to the conclusion that no legitimate exception can be taken to its decision. It was rightly decided that the property was an evacuee trust property, although the previous managers of the trust had, in breach, of the trust, been using a portion of the property as an inn or a hotel. This could not have the effect of altering the status of the property itself. This petition is, accordingly, dismissed . Petition dismissed.