1989SCMR1753 (PLP)

ALI HUSSAIN QAZILBASH, J.‑‑This appeal by leave arises from the order of a learned Single Judge of the Sind and Baluchistan High Courts, dated 21‑2‑1973.

2. Property bearing city survey No.B/761 situate near Makki Masjid, Hyderabad, is shown in the record‑of‑rights as "Hindu Sukhsabha" and is thus clamed by the appellant to be a property attached to a charitable, religious, educational trust or institution. This property was, however, transferred to respondent No.1, a claimant displaced person as back as 1959.

3. The appellant filed an application under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, before the Settlement Commissioner, South Zone, Karachi, for a declaration that the above property, r was attached to the charitable institution and as such could not be transferred to any person. This application was heard by the Settlement Commissioner exercising powers of the Chief Settlement Commissioner and dismissed on 18‑12‑1969 holding that the property was not attached to the charitable, religious, educational trust or institution. This order was impugned by the appellant before the High Court under section 4(4) of Act XXVIII of 1958 but the same too was dismissed on 21‑2‑1973.

4. Leave in this case was granted to consider whether in the absence of any I deed of trust indicating the real purpose of trust, mere production of the extract from the record‑of‑rights or city surveys which described a property as "dharamsala", "tikano" or by 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.

5. We have heard the learned counsel for the parties and have gone through the judgments of the Settlement Commissioner and the learned Single Judge of the High Court. The Settlement Commissioner while dismissing the petition filed by the appellant observed: "There is no evidence on the record in this case to show that this property is either a religious or charitable trust or institution or that it was attached to any such institution, that unsupported entries in the City Survey Record Hyderabad are vague and inconclusive. They are not adequate evidence for accepting the contentions of the applicant trust:" Similarly, the learned Judge in his Chambers while turning down the claim of the District Evacuee Trust Property Committee, Hyderabad, observed: "Further, it was not even proved before the Settlement Commissioner, who dismissed the appellant's application by his order, dated 18‑12‑1969, that any institution by the name of `Hindu Sukhsabha' at all existed at any time. The appellants could have brought evidence on this point but they failed to do so, and this raised the inference that most likely there was no such institution in existence."

6. After considering the arguments of the learned counsel for the appellant in the light of the above findings we have come to the conclusion that no case has been made out by the appellant before us to come to a finding different from the one arrived at by the Settlement Commissioner and the learned Judge of the High Court. No positive and authentic evidence has been produced in this case by the appellant to establish the character of the property in dispute as a trust property.

7. Thus finding no force in the appeal the same is dismissed with no order as to costs. M.A.K./D‑44/S Appeal dismissed.