1989 PLP 1605 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑Leave was granted in this case to determine the following question of law: "Whether in the absence of any deed of Trust indicating the real purpose of trust, mere production of the extract from the Record of Rights or City Survey which describe a property as `Dharmsala', `Tikano' or b an other similar expression, any such property can be declared to be attached to a religious, charitable or educational trust for the purpose of. section 4 of Act XXVIII of 1958?" The Evacuee Trust Property Board, the appellant herein, submitted an application under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 before the District Judge‑cum‑Chief Settlement Commissioner, Hyderabad, claiming that the property bearing Survey No.19/2189 Lalwani Gate, Hyderabad is an evacuee trust property and accordingly may be so declared. This application was eventually decided by Mr. S.M. Aihar, Settlement Commissioner with powers of Chief Settlement Commissioner, Karachi vide his order, dated 18‑10‑1969 holding that the property having been described as `tikano' does not necessarily mean a temple and that in any case mere entry in the survey record, unsupported by any other evidence, is not sufficient to hold that the property was evacuee trust property. Being aggrieved by the aforesaid order the petitioner filed an appeal before the then High Court of Sind and Baluchistan, Karachi which was decided by a learned Single Judge who agreed with the view taken by the Settlement Commissioner that the evidence consisting of extract from the city survey record was insufficient to hold that the property is attached to a religious or charitabie trust. The appeal was accordingly dismissed by judgment, dated 12‑2‑1973. This appeal has arisen in these circumstances. We have heard Ch. Farale Hussain learned counsel appearing for the appellant but no one has appeared for the respondents. It has been pointed out by the learned counsel that the property in dispute has been entered in the Property Register maintained by the City Survey authorities as `tikano Kalachand Rochiram' with an embargo that `Kalachand Rochiram' or his heirs will have no right to sell the property. In the circumstances it has been forcefully contended that the properly was obviously dedicated fur the religious purpose and was not held in private ownership. Learned counsel further submitted that `tikanu' is a Sindhi language word which inter alia means a `temple' or a `place of abode of Brahmins connected with religious rites'.

3. After hearing the learned counsel we find substance in the contentions raised by him in the light of the record placed on the fife. The order of the learned Settlement Commissioner reveals that the appellant had produced two documents before him which showed that the property was mentioned as `tikano' in the Extract (Exh.2) and the Enquiry Register (Exh.4) of the City Survey ,' Department, Hyderabad. The copy of the extract from the Property Register s Card has also been placed on the file of this appcal (Printed Record Page 11). In iB this document, in the column regarding holder and the origin of title, it is mentioned `tikano Kalachand Rochiram'. Further this document reveals that "Kalachand Rochiram or his heir, have no right to sell the property". This would clearly indicate that the property was a religious endowment dedicated to a i temple or in any case, for religious purpose. The embargo on the right to alienate t the property on Kalachand or his heirs further clearly excludes the private ownership of the said person and would support the conclusion that he was merely to manage or administer the affairs of the trust as a trustee or manager. Be that as it may, there is no evidence produced by the respondents to show that the properly was entered in the name of a private owner. Tile learned Single lodge of the High Court, in his order, did not doubt that the propertv was shown in the official record as a religious endowment for the purpose of `tikano~ but the main reason that prevailed with the learned Singie Judge was that this evidcncc in the form of entries in the Property Register maintained by the City Survey Department, Hyderabad was insufficient to sustain a finding that the property was attached to evacuee religious charitable trust. In this behalf we may refer to section 135‑J of the Sind band Revenue Code, which was the law C applicable at the time of the preparation of the record and section 52 of the West Pakistan Land Revenue Act which is applicable now, under which a presumption of truth is attached to such entries in the official record. The obvious effect of a such statutory provision is that tile contents of the entries shall be presumed to be correct until the contrary is proved. The effect of production of this evidence, therefore, is that the onus of proof shifts to the respondents to prove the contrary, namely, that the property was not religious trust property. We are unable therefore to subscribe to the view taken by the learned Single Judge, having regard to the fact that no evidence whatsoever was produced by the respondents, that this evidence was insufficient to hold the property as attached to a religious or charitable trust. It is well‑settled that in civil proceedings the rule of decision is that preponderance of evidence decides the issue. The question of law noticed in the leave granting order `whether is necessary to produce the deed of trust in order to show the real purpose of the trust' has not been pressed as there is no representation from the side of the respondents. We may, however, observe that according to section 407 of the Principles of Hindu Law by D.F. Mulla (10th Edn.) no writing is necessary to create an endowment except where the endowment is created by a will, if the case is governed by the Indian Succession Act, 1925. The learned author in the commentary, has also referred to case law holding that the dedication of land for public temple is not a gift within the meaning of section 122 of the Transfer of Property Act, and, consequently, does not require to be effected by a registered instrument. We arc, therefore, of the firm view that the evidence of extract from ~' the Property Register showing the property to be in the name of the temple is sufficient for the purpose of holding that it is attached to a religious trust. It may be clarified, however, that while giving effect to this finding the relevant authorities will take into consideration the provisions of section 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 (Act XIII of 1975) under which property utilized bona fide against the satisfaction of verified claims in respect of which P.T.Ds. were issued prior to .tune, 1968 have been validated and saved. This appeal, therefore, succeeds and is accordingly allowed with no order as to costs. M.A.K./E‑10/S Appeal allowed.