1985 PLP 905 (CLC)

This application under section 115 of the Code of Civil Procedure is directed against judgment and decree of the IInd Additional District Judge dated 24-5-1979 passed in Civil Appeal No.66 of 1976 confirming the judgment and decree dated 2-1-1978, whereby he had decreed the suit. In order to appreciate the point involved in this application for consideration by this Court it will be necessary to state briefly the facts. The Punjrapore Trust is a religious and charitable Trust which was established in or about 1866 with its main objects to maintain cows and give protection to them. The said trust was managed by a sole trustee who was called trustee Panjrapur Trust. It was on 24-5-1938 Karachi Panjrapur was registered under section 26 of the Companies Act, 1913 as "Karachi Panjrapore Association". In the year 1949 an application was made for declaration of the property belonging to Karachi Panjrapore Association as "Evacuee Property". The Additional Custodian (Judicial), Evacuee Property, Sind, declared as such on 28-1-1950. The Karachi Panjrapore Association went up in revision to the Custodian of Evacuee Property, Sind. The then Custodian by order dated 18-7-1950, accepted the revision and declared the Association non-evacuee and its properties as non-evacuee properties. After the relevant portion of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, was amended in the year 1951, the Rehabilitation Department took action for having the property of the Association declared as evacuee property. The Deputy Custodian of Evacuee Property, Karachi, after making an inquiry into the matter, by 'an order dated the 18th August, 1953, came to the conclusion that the Association had ceased to function and therefore, its case was covered by clause (d) of subsection (2) of section 2 of the Pakistan (Administration of. Evacuee Property) Ordinance, 1949. As a result of this finding the Association was declared to be an evacuee and its property as evacuee property. The Association challenged this order by means of revision but that was dismissed on 19-4-1966. The Association filed a writ petition under Article 170 of the late Constitution which was also dismissed. A Petition for special leave to appeal was then moved before the Supreme Court as well as a writ petition by some of the Hindu residents of Karachi. The Supreme Court granted special leave td appeal and, ultimately came to the conclusion that as the Association had ceased to function and was also being run by persons whose authority has not been approved or accepted by the Custodian, its case fell within the purview of clause (d) of subsection (2) of section 2 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 and therefore, it had become as evacuee and its property as evacuee. The Hon'ble Supreme Court observed that subsection (3) of section 6 of the Ordinance cast a certain duty for finding out what property was held in trust. As a result of those findings, the High Court was directed to issue a writ of Mandamus to the Custodian to take action as was provided by subsection (2) of section 6 of the Ordinance. The Custodian Evacuee Property by order dated 26-3-1960 held that the case was clearly covered by subsection (3) of section 7 of Pakistan (Administration of Evacuee Property) Act, 1957 which corresponds to subsection (2) of section 6 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, and declared that the properties numbered in the list annexed to the petition for special leave to appeal had been proved to be the property of Panjrapore Association and it was being used for religious and charitable purposes and recommended to the Central Government for the appointment of fresh trustees. Ultimately the Secretary, Divisional Evacuee Trust Committee took over charge of Panjrapore Trust vide Order No.IX(I)/62, dated 21-1-1963. The respondents claimed themselves as lessess of survey numbers 34 and 25 of Deh Babrano, tappo Manghopir by virtue of an ageeement of lease dated 9-7-1961 executed by one Baba Birpuri as sole trustee of Panjrapore Trust. That agreement purported to be for 99 years and had paid a sum of Rs.80,000 to the said Baba Birpuri as lease money. The land was acquired by K.D.A. and since the land was not utilised by K . D . A . the respondent applied for release but K . D . A . directed the respondents to seek declaration and injunction. The applicant filed written-statement wherein they denied claim of the respondents. It was averred that the suit property is an evacuee trust property and as such it is under their control and management. The applicant denied the existence of lease and the payment of lease money and the respondentst possession. It was further submitted that the said land had been acquired by K.D.A. for their Scheme. It is, however, claimed by the applicant that the property belonging to Parijrapore Association including the suit property has been declared as an Evacuee Property and as such it is under the control and management of the applicant. On the pleadings of the parties the learned trial Court framed the following issues:- "Issue No.l. Whether the plaintiffs have cause of action to file this suit? Issue No.2. Whether the suit is barred by Ss.22,25 and 26 of Displaced Persons (Land Settlement Act)? Issue No.3. Whether the property in suit is an evacuee trust property under the control and management of the defendants? Issue No.4. Whether Shari Mahant Baba was the sole trustee and administrator of the property in dispute and he had granted lease of the same to the plaintiffs for 99 years receiving Rs.90,000 and if so its effect? Issue No.5. What should the decree be?" The learned IIIrd Senior Civil Judge on the basis of evidence both oral and documentary produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issue No.4 in the affirmative and issues 1, 2 and 3 in the negative as not proved and decreed the suit vide his judgment and decree dated 2-1-1978. The applicant being aggrieved by judgment and decree dated 2-1-1978, of the 3rd Senior Civil Judge, Karachi, filed Appeal No.66 of 1978 which was ultimately decided by IInd Additional District Judge Karachi. The learned Second Additional District Judge dismissed the appeal and upheld the judgment and decree of IIIrd Senior Civil Judge Karachi, for the reasons given in the said judgment and decree. The appellant, abovenamed, being aggrieved by the judgment and decree dated 24-5-1979 of the Additional District Judge, Karachi has preferred this Revision Petition. Mr. S.A. Mujtaba the learned counsel for the applicant has contended that on account of the erroneous view taken by the lQarned Courts below that the property is not an evacuee property and the suit property belongs to trustee Punjrapore and not to Punjrapore Association. The learned Additional District Judge upheld the judgment and decree of IIIrd Senior Civil Judge. Such failure to exercise jurisdic tion justifies interference in revision. As held by the Privy Council in Joychandlal Babu v. Kamerlalesha Chaudhry A I R 1949 P C 239, if an erroneous decision of the subordinate Court results in that Court failing to exercise a jurisdiction vested in it by law, a case for revision arises. On the other hand Mr. Kunwar Mukhtar Ahmed the learned counsel for the respondents had contended that Panjrapore trustee and Panjrapore Association are two different entities Panjrapore Association was registered under section 26 of the Companies Act, 1913. Trustees Panjrapore is a different Body. He has further contended that this Court can only correct error of jurisdiction. The learned counsel for the applicant has contended that the suit property is an evacuee property. The learned counsel for the applicant, while arguing the case, has contended that the two Courts below have misread the evidence brought on the record and have, therefore, committed material irregularity in the exercise of their jurisdiction. In order to prove this contention, the learned counsel for the applicant took me through the entire evidence brought on record. He has also argued that the learned trial Judge, while deciding issues 1, 2 and 3 has neither discussed the evidence brought by the applicant on the record nor considered the Exhs. 23 and

24. As regards the judgment passed by the learned Additional District Judge, learned counsel for the applicant has submitted that the perusal of the judgment would show that the learned Additional District Judge has not only failed to discuss the evidence brought on the record by both the parties on material points relating to these issues, but has also rejected application under Order XLI, rule 27, C.P.C. without any cogent reason. The learned counsel for the applicant has also contended that the two Courts below have totally misread the evidence in arriving at the conclusion that the property in question belonged to Panjrapore Trust and there is no evidence to show that this property was ever declared as an evacuee property. On the basis of the aforesaid contentions, the learned counsel for the applicant has submitted that this Court has jurisdiction to upset the concurrent finding of fact arrived by two Courts below. The learned counsel for the respondents has argued that the two Courts below, while discussing issues 1,2 and 3, have properly considered the evidence brought, on the record and have reached the conclusion, which, being concurrent and relating to facts, cannot be upset in revision by this Court. He has also contended that the applicant, on whom the burden of proof lay in respect of issue No.3, has failed to bring cogent evidence on the record to show that Panjrapore Trust and Panjrapore Association are one and the same and that the properties which are shown in the name of trustee Panjrapore, are in fact the properties belonging to Karachi Panjrapore Association. On the basis of the evidence brought on the record, he has urged that the learned Courts below were right in arriving at the conclusion that the property in suit belongs to Panjrapore Trust. For claiming that the Trustee Panjrapore and Panjrapore Association are one and the same and the properties Association are one and the same and the properties which are shown in the name of Trustee Panjrapore are in fact the properties belonging to Panjrapore Association the applicant, who has set up the plea, was required to prove that the properties which are shown in the name of Trustee Panjrapore are in fact the properties belonging to the Panjrapore Association and are under the management of the Divisional Evacuee Trust Property Board. It is therefore, to be seen whether on the basis of the evidence brought on the record the applicant has been able to prove that all the properties of Trustee Panjrapore belongs to the Panjrapore Association. The two Courts below no doubt, have referred to the evidence brought by the parties on record. The learned trial Court, while dealing with these issues in its judgment has referred to the statement of legal assistant of the applicant Ikhlaq Ahmad. The learned trial Court has also referred to the statement made by Habibullah Khan, Abdul Rashid in this connection. The learned trial Court, in the light of the evidence referred to above, came to the conclusion that the evidence both oral and documentary so produced show that the suit property belongs to Trustee Panjrapore and not to Panjrapore Association. Exhs. 23 and 24 which are copy of Petition No.990163 and Schedule of property attached with it was filed by certain Hindus in order to seek declaration in respect of the properties of Panjrapore Association which were declared evacuee property in which Shri Mahanat Baba Birpuri is riot a party, also included in the land of Panjrapore Trust in the Sechedule Property Exh. 24 but riot all the properties mentioned in the Schedule may be treated as the properties of the Association without any documentary or other proof. It appears that in order to improve their properties they have included these properties also. They could claim that whole of the Karachi belonged to them but it could be accepted only when they proved it. It was held by the learned trial Court that the agreement of lease Exh.7 by which the property in suit has been transferred to the respondents". The learned lower appellate Court, while dealing with these issues, on page 13 of the judgment observed as under:- "It may be stated that the case of the respondents is that the property in question belongs to Panjrapore Trust which was never declared as Evacuee Property and Shri Mahant Baba was its sole trustee arid administrator appointed by a registered Deed the copy of which is on record who had leased out the said property to the respondent for 99 years in consideration of Rs.90,000 and the possession of the same was delivered to them as stated hereinabove. That this property was also declared as non-evacuee property by the Custodian of Evacuee Property vide orders dated 18-7-1950, 9-6-1959 arid 4-7-1964 as Exhs. 8, 9 and 10 respectively. The relevant entry in the copy of record of rights Exh. 13 further clearly shows the said property was in the name of trustee of Panjrapore Trust." "It may further be pointed out that the appellants have riot set up and/or made out any reasonable grounds in their scanty Written Statement which was filed by them except denying the claim of the respondents by merely stating that the suit property is an evacuee property under their control and management. During the trial of the case, the appellants produced certain documents pertaining to disputes concerning Karachi Panjrapore Association and the learned counsel for the respondents through-out maintained that these documents are irrelevant in the present case as the property in suit belongs to Panjrapore Trust and riot to Karachi Pinjrapur Association. The learned counsel appearing on behalf of the appellants has riot been able to point out any relevant evidence from the record in support of the claim of the appellants that the property in question is an evacuee property." From the aforesaid paragraphs of the judgment of the learned lower appellate Court it is clear that the said Court has totally failed to take into consideration documents produced by the applicant. In view of this failure of the learned lower appellate Court to notice the important piece of evidence on the record, it is necessary that the entire evidence produced by the parties in respect of these issues be reappraised. The schedule to petition is for special leave petition is at page H-O-B-Deli Babrano, Tappo Manghopir Taluka Karachi. Total area of Deli Babrano is 618.39 Acres. Permanent tenure yearly land Rent Rs.337-8-0. 226-26 Acres were donated by' various parties from 1864 to 1924. 101.13 Acres granted by Government in 1929. Exh. 20 is the order of the Custodian dated 26-3-1960 in which operative part of order, dated 29-3-1958 of the then Custodian which reads as under:- "The properties of the Panjrapore Association are fully set out in Schedule 'C' appearing on page 56 of the printed paper book of the Supreme Court of Pakistan. The properties consist of open plots, sheds, staff quarters, residential building, shops and agricultural land. As the list is a long one it is unnecessary to reproduce it here but the printed paper book referred to above is attached to this order. This property has been proved fully to be the property of Panjrapore Association and it is being used for religious and charitable purposes of the Karachi Panjrapore Association. The memorandum of the Association appears at page 122 of the paper book." The Custodian passed the following order: "These managers shall act under the directions of the Custodian. They shall take charge of the properties of the Association immediately and order to the Custodian on the 15th of each month complete and accurate accounts of the income arid expenditure." Exh. 21 is the letter dated 15-11-1962 addressed to the Custodian, Evacuee Properties, West Pakistan, Karachi by the Secretary, Divisional Evacuee Trust Committee which appears at page 187 of the paper book. By this letter he informed the Custodian that Ministry of Rehabilitation approved a Scheme framed by the Chief Settlement Commissioner under section 16-A (1) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 by virtue of which supervision, control arid administration of the entire evacuee trust property within the Karachi Division vests in the Divisional Evacuee Trust Committee. Mr.Mujtaba has also invited my attention to unreported order dated 26-12-1975 of Division Bench of earstwhile High Court of Sind and Baluchistan in 'Constitution Petition No.788 of 1975 Shri Mahant Baba Bhagalpury successor of Shri Mahant Baba Bhagwanpury v. Government of Pakistan and 2 others. The brief facts of the case are that Panjrapore Trust was managed by a sole trustee who is called Trustee Panjrapore Trust. There is also a Karachi Panjrapore Association which is different from Panjrapore Trust. The respondent No.1 under section 16(1) A of Displaced Persons Act arid section 14(2) of Displaced Persons (Compensation arid Settlement) Act framed a scheme for the management of Hindu religion and charitable trust properties in 1960. It was averred in the petition that the properties comprised in the said trust are not evacuee property and were never declared evacuee property. By an order dated 20-8-1975 called parawise comments from respondent No.2 namely Evacuee Trust Board. The Evacuee Trust Board submitted parawise comments on 25-9-1975. The contents of para.5 of the petition vehemently denied. It was averred that the properties are attached to the Panjrapore Trust which was placed under the management and disposal of Evacuee Trust Property Board in the year 1963 vide Order No.IX (1)/62, dated 21-1-1963 of the Secretary, Divisional Evacuee Trust Committee, Karachi. The relevant portion of the order reads as follows: - "The learned counsel relied on Article 20(b) of the Constitution of the Islamic Republic of Pakistan and contended that the article guaranteed every religious denomination and ever set thereof the right to establish, maintain and manage its religious institutions. The article will have no application for the reason that it being evacuee trust properties vested in the Custodian to be managed by the Evacuee Property Trust Board. It may further be noted that it is not the petitioner's case that the said properties are not being managed for fulfilling the purposes of the Trust. Such an allegation even if made cannot be properly adjudicated in a petition under Article

199. The result is that this petition is dismissed in limine." Mr. Mujtaba has also invited my attention to a case of Shri Mahant Bawa Manobhagir Manalgir v. Divisional Evacuee Trust Committee and 2 others 1982 C L C 1175. The facts are that the Chairman, Evacuee Trust Board and the Joint Secretary, Ministry of Religious Affairs and Minorities treated agricultural lands bearing Surveys Nos. 2, 3, 4, 5, 6 and 7 Deh Songal and Surveys Nos. 361 to 367 and 176 to 178 of Deh Gujro, Tapo Songal as Evacuee Trust properties belonging to Karachi Panjrapore Association. The Division Bench while dismissing the petition in limini observed as follows:- "It is admitted before us that right from the very beginning the status of the Association as an evacuee was under dispute and the controversy was set at rest finally by the order of the Supreme Court, dated 31-1-1957 in the case of Mahadavji Dharsibhai v. K.P.A., where the association was held to be an evacuee. The result of the above order of Supreme Court clearly was that all the properties held by the association were treated as evacuee properties. Apart from it, the Custodian of Evacuee Properties, by his order, dated 26-3-1960, held that all the properties belonging to association were evacuee trust properties. This order, it is admitted before us, was not challenged by the present petitioner at any time. The present petitioner, who alleges to have the control and management of the agricultural land, made an application on 25-4-1977, to the Chairman, Evacee Trust Board, complaining of alleged interference with his right of management and praying for deletion of these properties from the list of evacuee trust properties. The Chairman, Divisional Trust Committee took up the matter and after holding enquiry came to the conclusion that Panjrapore Association and Trustees, Panjrapore, are one and the same and that the properties which are shown in the name of Trustees Panjrapore, are in fact the properties belonging to Karachi Pahjrapore Association." The Secretary, Evacuee Trust Property Board by his order No.IX(1)/62, dated 21-1-1963, took over the charge of Panjrapore Trust. These orders were not challenged by Shri Mahant at any time. Shri Mahant Baba Mangalpury challenged that Evacuee Trust Property Ordinance, 1974 and the Evacuee Trust Properties Management and Disposal Act, 1975 through Constitution Petition No.788 of 1975 which was dismissed in limini. Shri Mahant Bawa Manobhagir Mangalgir challenged two orders dated 22-1-1978 of the Chairman, Evacuee Trust Board and the Joint Secretary was also dismissed summarily by Division Bench of this Court. The two Courts below by misreading the evidence brought on the record have arrived at incorrect conclusion which has resulted in grave injustice. Having come to the conclusion that the two Courts below have misread the evidence brought on record, the arguments advanced by the learned counsel for the respondents that the concurrent findings of fact arrived at by the Courts below cannot be disturbed in revision are without substance. In the instant case, I have come to the conclusion that the evidence on the record has been misread by the Courts below. Where the misreading of evidence is established, this Court is not only competent but it is duty bound to interfere with the finding of the Courts below, no matter the finding may relate to the questions of fact. In this view I am fortified by the authorities reported in P L D 1974 SC 22, 1980 S C M R 760, P L D 1980 B.J. 29, P L D 1980 Lah. 484, P L D 1954 Kar. 549 and P L D 1980 Pesh.

40. Mr. Mujtaba the learned counsel for the applicant has contended that agreement of lease Exh.7 was inadmissible in evidence under section 53-A of the Transfer of Property Act as well as for proving the nature and character of the respondents' possession over the disputed property. It has not been and cannot be disputed that Exh.7 being a lease agreement is not admissible in evidence to prove the title of the respondents over the disputed land. The respondents being the plaintiffs are also not entitled to use it under section 53-A of the Transfer of Property Act. It is well-settled that section 53-A is available only as al defence and cannot be invoked for enforcing right under an unregistered lease. In a case before me the respondents/ plaintiffs cannot be said to be in a position of a defendant. According to their own case the Karachi Development Authority acquired the disputed property alongwith others in 1962. Since these survey numbers were not utilized by the Karachi Development Authority, the respondents/ plaintiffs requested to release those survey numbers on the basis of lease but the Karachi Development Authority vide letter No.l-Acq/PII/NK/68/868, dated 4-12-1972 informed them to establish its title over the disputed land. The respondents filed a suit for seeking declaration of title to the property in dispute. In my opinion, therefore the respondents/ plaintiffs cannot use the unregistered lease Exh.7 under section 53-A of the Transfer of Property Act in support of their title. An argument was put forward on behalf of respondent that though this contract to lease had not been registered, the respondents can claim relief under it in view of the provisions of section 53-A of the Transfer of Property Act. In my opinion, this argument proceeds on an incorrect interpretation of section 53-A, because that section is only meant to bring about a bar against enforcement of rights by a lessor in respect of property which the lessee had already taken possession, but does not give any right to the lessee to claim any right on the basis of unregistered lease. Section 53-A is only available as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights. In the result, accepting this revision, I hereby set aside the judgments and decrees of the two Courts below and dismiss the plaintiffs' suit. In view of the nature of the case and the point involved, however, I make no order as to costs. M.Y.H. Petition accepted.