2022 PLP 178 (CLC)

CH. MUHAMMAD IQBAL, J.

Through this writ petition, the petitioners have challenged the order dated 16.04.1986 passed by the Chairman, Evacuee Trust Property Board whereby the land in question was declared as Evacuee Trust Property and also assailed the order dated 03.02.2021, passed by the Secretary, Ministry of Religious Affairs and Interfaith Harmony, Government of Pakistan, Islamabad who dismissed the revision petition of the petitioners.

2. Brief facts of the case are that land measuring 639 Kanal situated in Pindi Chari Kalan Tehsil Nankana Sahib District Sheikhupura was allotted by the Settlement Department to one Khan Bahadur Muhammad Akbar Ali Khan. Out of the above land, the said allottee alienated the land to Muhammad Ilyas Manzoor Ahmad, Muhammad Riaz Khan and Noora. Manzoor Ahmad further sold the land measuring 79 Kanals to Karim Bukhsh and land measuring 6 Kanals to petitioner No.6. Muhammad Ilyas alienated 78 Kanals land to the petitioners Nos.6 and 7 on 24.09.1981. The aforesaid sale deeds were allegedly registered and mutations were sanctioned in the years 1981 and 1982 in favour of the respective vendees. The Assistant Administrator, Evacuee Trust Property, Lahore / respondent No.4 filed a reference under Sections 8 and 10 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (sic) for declaring the land in question as Trust Property as well as sought cancellation of allotment/ transfer in the name of Khan Bahadur Muhammad Akbar Ali Khan. Despite notice the respondents Manzoor Ahmad, Muhammad Ilyas Khan, Noora etc. did not appear before the Chairman, as such, they were proceeded against ex-parte vide order 10.05.1984. After recording evidence, the Chairman passed impugned order dated 16.04.1986, declaring the land in question as Trust Property and also observed that the Khata RL.II. is an antedated and bogus document and cancelled the allotment of the allottee as well as subsequent sale transactions. The petitioner assailed the above order of the Chairman in a civil suit which was dismissed by the learned trial court vide judgment and decree dated 19.03.1991. The appeal of the petitioners was also dismissed by the learned Additional District Judge on 19.12.2000. Thereafter, the petitioners filed a Writ Petition No.8186/2002 which was dismissed as withdrawn on 16.05.2002 and challenged the order of Chairman dated 16.04.1986 before the respondent No.1 in a revision petition under Section 17 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 (sic) which was dismissed vide impugned order dated 03.02.2021. Hence, this writ petition.

3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

4. After partition of sub-continent, the majority of Sikh and Hindu Communities' people migrated to India and they abandoned their private / personal as well as religious or other private institutional, organizational properties in Pakistan. The said evacuee properties stood vest with the Federal Government. The properties of private evacuee was made part of the compensation pool under Section 4 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958); whereas the evacuee land, attached with religious educational institution was excluded for any allotment under the rehabilitation process. Section 4 of the above enactment is as under:- "

4. Compensation pool.

(1) For the purpose of payment of compensation to claimants in respect of immovable property other than agricultural land, a compensation pool consisting of the following shall, subject to the provisions of subsection (2), be . constituted, namely:-- (a) All evacuee property acquired under section 3; (b) Sale-proceeds of any immovable evacuee property lying with the Custodian, compensation paid or payable to the Custodian by the Central or Provincial Government on the acquisition of any immovable evacuee property under law for the time being in force, and consideration money paid or payable on the confirmation of sale of any immovable evacuee property; (c) Public dues of the nature described in sub-clause (d) of clause (10) of section 2 and recovered under this Act; (d) Government property allotted for rehabilitation purposes and exchanged with evacuee property with the consent of the Government; and (e) any amount or property forfeited under section 18. (2) Immoveable 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 from part of the compensation pool constituted under subsection (1). (3) If 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 the Chairman Evacuee Trust Property Board 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 be passed without giving the persons interested a reasonable opportunity of being heard. Explanation: In this subsection and in section 16-A. "Evacuee Trust Property Board" means the Board constituted under the Scheme for the Management and Disposal of Property attached to Charitable, Religious of Educational Trust or Institutions. (4) Any person aggrieved by an order under subsection (3) may, within thirty days of the order, prefer an appeal to the High Court." (underlining supplies) One Khan Bahadur Muhammad Akbar Ali Khan, the evacuee claimant allegedly got antedated allotted evacuee land in question on the RL.II. No.9 dated 31.12.1963, but the said allotment was got incorporated in the revenue record in 1981/1982. With regard to those stale allotment order of evacuee land which were not incorporated in the Revenue Record, Chief Settlement Commissioner vide Notification No.1624/78/855/RL dated 19th June, 1978 restricted the lower Revenue hierarchy to incorporate such allotment in the revenue record before coming into force of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975(sic) or within one year after passing of allotment order, whichever is later, may be deemed to have been obtained fraudulently by anti-dating the entries in the register R.L.II and should be considered as cancelled forthwith, after hearing objections, if any, of the so-called allottee. For ready reference, aforesaid notification is reproduced as under:- No.1624/78/855/RL Office of the Member Board of Revenue (Settlement and Rehabilitation Wing) Punjab. Dated Lahore the 19.6.1978. From Mian Waheed-ud-Din Rathoro, Secretary (Rural) (Settlement and Rehab. Wing) Board of Revenue Punjab. To

1. All the wholetime Settlement Commissioners (L) & Addl: Settlement Commissioners (L) Punjab.

2. All the Deputy Commissioners and Assistant Commissioners (ASC) (L) in the Punjab. Subject: Allotment of resumed land to informers etc. Mr. A.K. Khalid, C.S.C./Member Board of Revenue (S&R) Punjab. MEMORANDUM: The Chief Settlement Commissioner/Member, Board of Revenue (S&R) Punjab, has been pleased to decide that any, allotment that has not been incorporated in the revenue record before coining into force of the Evacuee Property and Displaced Persons (Repeal) Act, 1975 or within one year of the passing of allotment order, whichever is later, may be deemed to have been obtained fraudulently by anti-dating the entries in the register R.L.II and should be cancelled forthwith, after hearing objections, if any, of the so-called al lottee.

2. The Chief Settlement Commissioner/Member Based of Revenue (S&R) Punjab, has further been pleased to order that all cases where land has been resumed on 'Mukhbari' applications filed by attorneys of the original claimants should invariably be submitted to the Chief Settlement Commissioner for necessary orders as he thinks necessary with regard to the proposal/allotment of the land so resumed, under Section 14 (1A) of the Displaced Persons (Land Settlement Act, 1958, read with section 3 of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975.

3. You are, therefore, requested kindly to ensure strict compliance of orders of Chief Settlement Commissioner/ Member Board of Revenue accordingly, without further delay. Sd/-SECRETARY RURAL) (SETT: AND REHAB. WING) BOARD OF REVENUE PUNJAB. No.1624/78/855/RL dated 19th June, 1978. A copy is forwarded to all the Commissioners/Addl. Commissioners (Settlement Commissioners (Land) Punjab for information and necessary action. Sd/-SECRETARY RURAL) (SETT: AND REHAB. WING) BOARD OF REVENUE PUNJAB.

5. The main controversy in this petition is whether the impugned allotted land was an evacuee trust property or a simple evacuee. To ascertain the actual status it is appropriate to take assistance from the documentary evidence of the revenue record. In the Jamabandi for the years 1945-46, 1966-67 the ownership of land in question is entered in the name of Sharomati Gurdawara Parbandhak Committee (A religious organization entrusted with obligation of maintaining the Sikh religious institution or places of worship). The aforementioned longstanding entries demonstrate that land in question was a trust property. The above said official record (Jamabandis) is more than 30 years old documents, which wear a presumption of correctness under Article 100 of Qanun-e-Shahadat Order, 1984, until the said presumption is not displaced through any cogent believable and trustworthy record. Moreover with regard to longstanding entries in the revenue record the Hon'ble Supreme Court of Pakistan has declared that the revenue record is sufficient for proving the status of a property belonging to a trust and non-production of evidence regarding the factum of creation of a trust is considered as inconsequential. Reliance is placed on the cases titled as District Evacuee Trust Committee v. Mashraf Khan and 3 others (1989 SCMR 1636), District Evacuee Trust Committee v. Muhammad Umar and others (1990 SCMR 25) and Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others (PLD 1991 SC 586). Further the Hon'ble Supreme Court of Pakistan in a case titled as Qazi Akbar Jan and others v. The Chairman District Evacuee Trust Committee, Peshawar and others (1991 SCMR 2206) has held that where sufficient prima facie evidence was adduced showing the property was attached to a religious or charitable institution and veracity of such evidence was not displaced by any other reliable evidence in that eventuality the burden of proving the actual creation of trust is on the party asserting property was attached to a religious or charitable trust was not essential and such matter could be decided on the rule of preponderance of evidence. Relevant portion of the judgment (supra) is reproduced as under:- "

11. The above contention is devoid of any force as there is no evidence on record that any private religious trust was created by an individual. On the contrary, the above Revenue Record of the year 1895 indicates that it was a public religious trust. The property was shown to have been vested in the through the incumbent of a religious office and not in any individual. There is a concurrent finding of the Settlement Commissioner and the High Court on the question that the above was a public religious trust and because of that, even the Settlement Commissioner excluded the portion of the from being treated as a private evacuee property. Even the Revenue Record for the year 1929 also contains the following entry in the column of which reads as follows:- It is, therefore, evident that the High Court was justified in holding that the Thakar Dawara and the land attached to it, was property attached to a religious trust. We may point out that in order to make a property attached to any charitable, religious or education trust or institution in terms of subsection (2) of section 4 of the Act, it is not necessary that the entire property should be used for the aforesaid purpose. What is required is, that the property should be attached to a trust or institution of the above nature. Since Thakar Dawara admittedly is a religious institution, the land attached to it, is also trust property .." Similar view has been reiterated in a case titled as Muhammad Usman and others v. Secretary to Government of Pakistan and another (PLD 2004 SC 140) and Muhammad Usman and others v. Secretary to Government of Pakistan and another (PLJ 2004 SC 524), relevant para whereof is reproduced as under:-- "

8. The law has fairly developed in this behalf and this Court in Evacuee Trust Property Board v. Rahim Khan (1989 SCMR 1605) has held that an entry of inquiry register of City Survey Department showing the property as temple was sufficient, in the absence of any evidence to the contrary, that it was a religious endowment dedicated for a religious, purpose. Such entries having been prepared by public officials in the discharge of their official functions carried a presumption of correctness as pet verdict of this Court in District Evacuee Trust Committee v. Muhammad Umar (1990 SCMR 25) which further went on to hold that the onus is shifted to any claimant to show that the entries were incorrect or unreliable in the instant case the appellants have utterly failed to produce any evidence in rebuttal of the entries concerning the existence of a free hospital which also was exempt from the payment of taxes."

6. Moreover, the Chairman Evacuee Trust Property under Section 8 of the Act ibid alone is competent to decide every/any controversy relating to an evacuee property attached to charitable, religious or educational trust / institution or otherwise and any order / proceeding before the Civil Court are termed as coram non judice as settled by the Hon'ble Supreme Court of Pakistan in a case titled as Ahmad and others v. Rana Mumtaz Ahmad and others (2016 SCMR 679), relevant portion whereof is reproduced as under:- "

11. Now the question arises where jurisdiction of the Civil Court is expressly barred and the Court exercising jurisdiction under Section 8 of the Evacuee Trust Properties (Management and Disposal) Act is a Court of Plenary Jurisdiction in view of the provision contained in Section 21 of the Act, for the purposes of deciding the question, whether an evacuee property is attached to charitable, religious or educational trust or institution how could a Civil Court sit in judgment over the judgment of the Chairman Trust Board when the law has blessed it with finality and made it immune from being questioned in any Court. In the case of Evacuee Trust Property Board v. Mst. Zakia Begum and others (supra) this Court after analyzing the relevant provision of the Evacuee Trust Properties (Management and Disposal) Act, held that the Chairman Evacuee Trust Property under Section 8 of the Act alone is competent to decide whenever any question arises as to whether an evacuee property is attached to charitable, religious or educational trust or institution or otherwise and that proceeding before the Civil Court shall be coram non judice...." Reliance is placed on the case titled as Jehanzeb Khan and another v. Federation of Pakistan through Secretary, Law Justice and Parliamentary Affairs, Islamabad and 5 others (1999 MLD 2505) (D.B), the learned Division Bench of this Court held as under:-- "The jurisdiction of the ordinary civil Courts established under the ordinary law is excluded or barred and a certain class of persons (holding Evacuee Trust Properties) has been made subject under the Act and such classification to us is either irrational nor unreasonable." Reliance can also be placed in a cases titled as Nasir Fahimuddin and others v. Charles Philips Mills and others (2017 SCMR 468) and Haji Moneer Ahmad v. Islamic Republic of Pakistan through Secretary Ministry of Religious and Minorities. Evacuee Trust Properties Board and Rehabilitation, Government of Pakistan and 3 others (2006 CLC 1263). As such the Chairman, vide impugned order dated 16.04.1986 has rightly declared the land in question as a Trust Property and cancelled allotment at Khata RL. II No.9 in favour of Khan Bahadur Muhammad Akbar Ali Khan.

7. Next as regard to the case of the petitioners who claim to be the bona fide subsequent purchasers of the land in question and have the protection of law, suffice it to say that admittedly they derived right from the alleged allottee Khan Bahadur Muhammad Akbar Ali Khan and the subsequent purchasers only stepped into shoes of their vendor and are debarred to claim any independent better title than that of their vendor rather they have to soar and sink in same vessel with their vendor lacuna or flaw in the title of the vendor emerges after the transaction that shall always travel with the property and the subsequent vendee has to suffer for non-holding diligent and stringent microscopic probe into the title of the vendor and have no right or claim against the respondent department, rather may trace their legal remedy against their vendors, as such they (subsequent purchasers) have no protection under Section 41 of Transfer of Property Act. Reliance can be placed on the case titled as Muhammad Yamin and others v. Settlement Commissioner and others (1976 SCMR 489) and Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549).

8. Further against the foundational order of the Chairman, dated 16.04.1986 the petitioner filed civil suit which was dismissed on 19.03.1991 and appeal of the petitioner was also dismissed on 19.12.2000 and after having lost the civil suit upto the appellate court, then they filed Writ Petition No.8186/2002 which was dismissed as withdrawn on 16.05.2002. This factum demonstrates that the petitioners were well aware about the order of the Chairman but they filed revision petition before the Revisional Authority/respondent No.1 in the year 2021 after lapse of about 35 years of passing the order dated 16.04.1986 by the Chairman whereas under Section 17 of the Act ibid, limitation for challenging the order in Revision Petition is only 15 days, but neither any explanation was finished regarding this inordinate delay nor any application was filed for condonation of delay. It is well settled law that after the lapse of Me described period Of limitation a tangible right stood accrued in favour of the adverse/rival party which could not be mutilated on the shallow assertion of indolent party who deliberately slept in deep slumber over the adverse order. Moreover pursuing the matter at wrong forum due to the ill advice of the counsel cannot be considered a valid ground for condonation of delay. Thus the period of limitation is provided in the special enactment which takes preference over, provisions of the general law of limitation. Thus it can be conveniently observed that Revision Petition of the petitioner before respondent No.1 was manifestly barred by limitation. The time elapsed in pursing the matter in hand before the wrong forum cannot furnish any protection to the petitioners against the bar of limitation. Reliance in placed on a landmark judgment rendered by the Hon'ble Larger Bench of the August Supreme Court of Pakistan cited as Khushi Muhammad through L.Rs. and another v. Mst. Fazal Bibi and others (PLD 2016 SC 872). Keeping in view the aforementioned facts and circumstances of the case, the respondent No.1 after considering the fact and law has rightly passed the impugned order against the petitioners.

9. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity in the impugned orders and has also not identified any jurisdictional defect calling for interference by this Court.

10. Resultantly, this writ petition being devoid of any merits is hereby dismissed in limine. SA/K-12/L Petition dismissed.