1992 PLP 313 (CLC)

Shahzad Shaukat on behalf of Dr. A. Basit for Petitioner. Ch. Fazal‑e‑Hussain for Respondent No.1. Malik Muhammad Azam Rasool for Respondent No.2. Date of hearing: 13th July, 1991. In this Constitutional petition the petitioner calls in question the legality of order dated 22‑5‑1978 passed by the Federal Government accepting the revision petition filed by respondent No.2 against the order dated 7‑2‑1976 passed by the Chairman, Evacuee Trust Property Board, by which the property in dispute has been declared to be an evacuee trust property.

2. The facts giving rise to this Constitutional petition briefly stated are that the land in dispute comprising Khasra No.3194 which is measuring one Kanal 19 Marlas was allotted under the settlement laws to the petitioner in the year 1953 which was subsequently confirmed in his name against his verified claim on 30‑4‑1964. The Assistant Administrator, Evacuee Trust Property Board, Gujranwala moved an application on 6‑8‑1975 before the Chairman of the Evacuee Trust Property Board that the land in question be declared as an evacuee trust property.

3. The petitioner contested the said application by filing reply in which a plea was specifically raised that the land in question was not evacuee trust property. The Chairman, Evacuee Trust Property Board by his order dated 7‑2‑1979 dismissed the said application by holding that the land was not evacuee trust property. This finding was based on the entries in the Jamabandi for the year 1946‑47 in which Kirpa Ram son of Devi Ditta Mal Arora Chawala was recorded as owner of the land who had mortgaged it with Lal Chand and Nand Lal sons of Harbans Dass. It was observed that the fact that Kirpa Ram had mortgaged the property was sufficient evidence to establish that the same was his personal property as such the same was not evacuee trust property.

4. Respondent No.2 who claims to be m occupation of the same as lessee of the Evacuee Trust Property Board filed revision petition before the Federal Government under Section 17 of Act XIII of 1973 which has been accepted through the impugned order dated 22‑5‑1978. It has been held on the basis of the entries made in the list of evacuee trust property maintained .by the Evacuee Trust Property Office, Gujranwala, statement allegedly made by Kalim Ullah the present petitioner on 22‑7‑1975 and one Muhammad Hussain son of Shams Din of Rasul Nagar before the Assistant Administrator, Evacuee Trust Property Gujranwala and list of `Khana Shumari' prepared by the Municipal Committee for the year 1941 that the property was evacuee trust property.

5. I have heard learned counsel for both the parties. Before a property could be held to be an evacuee trust property it was to be established or shown from some tangible evidence that the owner of the property dedicated the same for religious charitable purpose etc. The list of `Khana Shumari' relied upon by the Federal Government has been read by the learned counsel for respondent No.2 from which it is manifest that the property has been described as "Makan Mandir" but there is nothing in this document that this entry relates to Khasra No.3194 which is the property in dispute and owned by Kirpa Ram. There is no mention as to what was the exact area over which the said property was constructed. This document, therefore, could not be used as evidence unless it was proved that the same related to the property i.e. Khasra No.3194. The list of evacuee trust property as maintained by the Evacuee Trust Property Office Gujranwala could hardly be considered to be an evidence itself regarding dedication of property by the owner for charitable purpose and `Mandir' etc. The statement allegedly made by the petitioner on 22‑7‑1975 in which he allegedly stated that there existed a "Mandir" in 1953 could not have been used against him unless it was so proved that he made the said statement. In reply to the application made by the Administrator, Evacuee Trust Property Board for obtaining declaration about the character of the property the petitioner specifically denied that the same was evacuee trust property. The entries in the Jamabandi for the year 1946‑47 show that Kirpa Ram son of Devi Ditta Mal Arora Chawala has been recorded as owner who had mortgaged the property in favour of Lal Chand and Nand Lal sons of Harbans Dass. In column No.6 this property has been shown to be Braham Akhara. Learned counsel for respondents Nos.1 and 2 laid a great deal of stress on the point that the "Akhara" being a public purpose, therefore, the property shall be deemed to have been dedicated for that purpose. I am afraid the argument in my opinion is plainly unsound. The fact that the owner had been dealing with the property as his own because he mortgaged the same and was recorded as owner in the Jamabandi for the year 1946‑47 which is the relevant evidence on the basis of which nature and character of property is to be determined does not show that the owner ever dedicated or intended to dedicate the same for religious purpose etc. Learned counsel for respondent No.1 submitted that in this Jamabandi under column No.9 which relates to the recovery of "Malia" it has been stated as which by implication means that the property had been dedicated for religious purpose because "Malia" on such properties only could be waived No such law has been referred by the learned counsel for respondent No.1 for raising this argument. 5‑A. The findings recorded by the Federal Government are not based on any evidence admissible under the law to dislodge a strong evidence as contained in the Jamabandi for the year 1946‑47 on the strength of which the Chairman, Evacuee Trust Property Board declared that the property was not evacuee trust property which findings are perfectly in accordance with law based on admissible evidence.

6. The writ petition for the foregoing reasons is accepted. The impugned order dated 22‑5‑1978 passed by respondent No‑1 is hereby declared to have been passed without lawful authority and of no legal effect. In the result the order dated 7‑2‑1976 passed by the Chairman, Evacuee Trust Property Board stands restored. There will be no order as to costs. AA./K‑349/L?????????????????????????????????????????????????????????????????????????????????????? Petition accepted.