1969L32 (PLP)

MUSHTAQ HUSSAIN, J.‑--This is a Settlement Appeal under section 4 (4) of the Displaced Persons (Compensation and Rehabi litation) Act, 1958, as amended up to date, against an order passed by the Settlement Commissioner, Lahore, on 1st May 1967 rejecting the petition of the present appellant for a declaration that the property in dispute was evacuee trust property.

2. The appellant is the Evacuee Trust Board constituted under section 16‑A of the aforesaid Act. It claims that the property, i.e. No. S. 54‑R‑12, Rattan Chand Road, Lahore, known as Gurdwara King Edward Medical College, Lahore, is an evacuee trust property and could not be acquired or transferred by the Lahore Improvement Trust in favour of Dr. Ghulam Yasin, respondent No. 2.

3. The learned Settlement Commissioner, Lahore, framed the following two issues:-- (1) Is the suit property evacuee trust property? (2) Relief.

4. No oral evidence was produced before him by the parties. The P. A: List (Exh. P. 1) of the Municipal Corpora tion of Lahore in respect of the property in dispute for the year 1944, and a copy of the Assessment Register for the year 1953 (Exh. P. 2), and a letter (Exh. P. 3) sent by Sardool Singh Bharara of the Sixth Association, King Edward Medical College, Lahore, on 19th September 1944 to the Chief Officer, Corpora tion of the City of Lahore, were the only documents produced by the appellant before the learned Settlement Commissioner in support of its case. Exh. P. 1 shows that the prop.‑rty in dispute was owned by the Gurdwara King Edward Medical College, Lahore, and that no tax, etc. was proposed to be levied on it. In Exh. P. 2, which relates to the year 1953, Sir Kikabhai Prem Chand, State Patiala Vakilkhana, Lahore is shown to be the owner but the names of Tufail Muhammad, Allah Ditta `Tanurwala', Muhammad Shafi and Sharifa are entered in column No. 5 which pertains to the name and address of the occupier. No amount has been mentioned in column No. 14 which deals with tax.

5. Exh. P. 3 is an objection sent by the Sikh Association protesting against the proposal to substitute the name "Sikh Youngmen Association, Medical College Hostel, Lahore" as owner in place of Sir Kikabhai Prem Chand, State Patiala Vakilkhana, Lahore in the Assessment List. It was prayed in the applica tion that the name of the Association should be correctly entered as "Sikh Association" and not as "Sikh Youngmen Association". It was also stated that the Association was registered under the Registration of Societies Act (No. XXI) of 1860 at No. 16 of 1941‑42.

6. There is nothing on the record to show that the property in dispute was ever lawfully acquired by or vested in the Sikh Association. The revenue record shows that in the year 1941‑42 the property in dispute was a house and was owned by the aforesaid Sir Kikabhai Prem Chand while the name of the Sikh Association Medical College, Lahore is entered as a `Gher Dakhil kar' in column No. 6 and column No. 10 shows that it is in possession of the property in dispute `Bila‑lagan ba Tasawwar Bai'. Although the name of the Sikh Association appears as stated above, there is no entry of 'Malik Gher Qabiz' in column No. 5 of the Jamabandi. This shows that by that time the Medical Association had not acquired any semblance of a right in the property. The entry in column No. 10 'Bila‑lagan ba Tasawwar Bai' is wholly incompatible with the entry in column No.

5. If the entry in column No. 10 is correct, the entry in column No. 5 should have been 'Malik Gher Qabiz'. There is no such entry. If some person other than the right‑holder is in adverse possession of a property an entry of 'Gher Qabiz' has to be made in column No. 5 of the Jamabandi regarding such right‑holder. It is settled law that a Jamabandi does not provide for any one being shown in possession except as owner, which includes a mortgagee with possession, or as cultivator unless the owner is explicitly declared to be 'Gher Qabiz' in which case the name of the person in possession is shown not in the column of culti vation, but in that of ownership as 'Gher Malik Qabiz' and the name of the owner is followed by the expression 'Malik Gher Qabiz'. An entry of 'Bila‑lagan ba Tasawwar Bai in respect of a tenant is inconsistent because a person who is a tenant cannot be in adverse possession. If the facts show that such a person is in adverse possession it is imperative that the :Mutation of 'Gher Qabiz' as referred to above, should be made in respect of the landlord and unless that is done a tenant cannot claim any rights of ownership or of adverse possession against the person mentioned as 'Malik Qabiz' in column No. 5.

7. An application has been made before us for permission to adduce additional evidence in the shape of certain documents which are now claimed to be a part of the plan (Exh. P. 2) filed before the learned Settlement Commissioner but no case whatso ever for the grant of such a permission has been made out in the application, and we have therefore no option but to reject the application for producing additional evidence.

8. On the facts, therefore, it cannot be said that the Sikh Association ever owned the property in dispute or that it was in adverse possession of it.

9. There is another aspect of the case which requires consi deration. From the letter (Exh. P. 3) it is evident that the Sikh Association was a society registered under the Societies Registra tion Act, 1860. The Act, as is shown by the long title, is "for the registration of literary, scientific and charitable society". The preamble shows that the Statute concerns itself with Societies "established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge, the diffusion of political education or for charitable purposes". A Gurdwara, which is a place of worship for Sikhs, would not fall within any of the categories mentioned above and the Society could, there fore, not have lawfully acquired property for the purpose of con verting it into a Gurdawara, the same being inconsistent with the very objects for which it could be and must in all probability have been registered under Act XXI of 1860. In fact, there is a specific Act dealing with bodies of persons associated for the pur pose of maintaining religious worship and lays down the manner in which they can hold property acquired for such purpose. This is the Religious Societies Act (No. 1) of 1880 and is applicable to the Sikhs.

10. Section 4 (Z) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, is attracted only to such immov able evacuee property as is:‑ "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 . . . . . ."

11. To prove that the property is attached to a Religious Trust would require the ascertainment of‑ (a) the author of the alleged trust, (b) the intention to create a trust by words or acts, (c) the purpose of the trust, (d) the trust property, and (e) the beneficiaries. All this should be proved in such a manner that it should be possible for a Court to administer the trust if any occasion arises. As has been demonstrated above, the Sikh Association, as an Association registered under the Societies Act of 1860 had no authority to create a Religious Trust. Even otherwise there is no evidence to show that the Sikh Association of the King Edward Medical College, Lahore had even intended to create a Trust of the property in dispute. It is not even alleged that Sir Kikabhai ever created such a Trust in respect of the property in dispute. The other questions do, therefore, not arise.

12. It was contended before us that if the alleged Gurdwara did not constitute a Trust, since there was no evidence to prove the creation of the Trust, it was, at least, a religious institution and the property would therefore be covered by section 4 (2) of the Act. There is no evidence even to prove that a religious institution as such was ever created by the Sikh Association and that the property in dispute was attached to it. Even if it were to be assumed for the sake of argument that the property in dispute was attached to a religious institution, it would not advance the case of the appellant.

13. The property in which an evacuee has any right or interest as a trustee or a beneficiary was included in the definition of "evacuee property" for the first time by the Pakistan (Administration of Evacuee Property) (Amendment) Act VI of 1951 which amended section 2 (3) of the existing Ordinance XV of 1949 to achieve this purpose. Section 6 of Ordinance XV of 1949 was also amended by the same Ordinance and a new subsection (2) was inserted wherein it was laid down that‑ "Where any evacuee property is property held in trust for religious or charitable purposes, the property shall remain vested in the Custodian only till such time as fresh trustees are appointed in the manner provided by law, and pending the appointment of fresh trustees the trust property and the income thereof, shall be applied by the Custodian for fulfilling, as far as possible, the purposes of the trust." This Amendment had the effect of vesting such property in the Custodian only till the happening of a certain event and for a specified purpose. But, as has already been indicated above, it does not apply to a case of a religious institution where it has A not been proved that a trust was created and that the property was held in trust. The result would, therefore, he that the pro perty in dispute vested in the Custodian as completely as any other evacuee property and not partially. The Custodian had full power to deal with it.

14. The property was admittedly acquired by the Lahore Improvement Trust with the sanction of the Central Government on 16th May 1951 and the award in respect of it was announce) on 17th November 1955. The Displaced Persons (Compensation and Rehabilitation) Act came into existence in 1958. Under section 3 of the Act the Central Government could, inter alia, authorise the Government of West Pakistan to acquire evacuee property for any of the purposes of this Act. The acquisition could be made by publication of a notification. Such a notification was published under No. U‑8‑79/3119 on 21st August 1959 whereby the Government of West Pakistan acquired for the pur poses of the Act all immovable evacuee property situated within the Province other than‑ "(i) .. (ii) property for the acquisition or sale of which sanction of the Central Government under the Pakistan (Administration of Evacuee Property) Act, 1957, or under any law for the time being in force for the administration of evacuee property in Pakistan, has been accorded before the date of this notification. (iii) (iv) " We have if already seen that such permission had been accorded on 16th May 1951. By virtue of this transaction, this property ceased to be evacuee property long before the Act of 1958 came into operation and the property was never acquired by the Govern ment and, therefore, did never form part of the Trust Pool. It is clear that even if the assumption, referred to in paragraph 12 above, was made, the order of the Settlement Commissioner impugned before us is not open to any objection.

15. Even if it is assumed that the property was trust property, a perusal of section 4‑A of the Displaced Persons (Compensation and Rehabilitation) Act by which the Trust Pool was created would show that not only was trust property to form part of the Trust Pool but even "sale proceeds of any such property lying with the Custodian was to be a part of it". Sections 4 and 4‑A, therefore, did envisage cases in which Trust Property was sold and instead of annulling such sales, provided for the vesting of the sale proceeds in the Trust Pool. The sale of the property in dispute can therefore not be questioned.

16. This appeal, therefore, fails and is hereby dismissed with costs throughout. A. E. Appeal dismissed.