2015 PLP 276 (CLC)

MUHAMMAD KHALID MEHMOOD KHAN, J.

The petitioners' predecessor-in-interest namely Abdul Razzaq was allotted land measuring 186-kanals 10-marlas (detailed in para 2 of the petition) in Khata No.223 of RL-II in Village Chakrala being evacuee. The Chief Administrator Auqaf submitted an application to the Additional Settlement Commissioner (Lands) Sargodha for cancellation of land allotted to Abdul Razzaq claiming that land allotted to Abdul Razzaq is a Waqf property; the then Additional Commissioner vide order dated 11-10-1971 cancelled the land from the name of Abdul Razzaq, the Chief Administrator Auqaf issued Notification on 28-1-1970 declaring the land allotted to Abdul Razzaq is a Waqf property, Abdul Razzaq filed W.P.No.191-R of 1973 in the Lahore High Court, Lahore; the said writ petition was allowed on 12-11-1973 and the case was remanded to Settlement Commissioner Sargodha; the Settlement Commissioner after hearing all the parties set aside the order dated 11-10-1971 of Additional Settlement Commissioner on 19-12-1974. The Chief Administrator Auqaf assailed the order through W.P.No.290-R of 1975; the writ petition was dismissed on 29-3-1980. After the judgment of the Lahore High Court, Lahore the Chief Administrator Auqaf withdrew the Notification dated 28-1-1970. The Chairman Evacuee Trust Property Board aggrieved of the order passed in W.P.No.290-R of 1975 filed Civil Appeal No.770 of 1984 claiming that the property is an evacuee trust property, the Hon'ble Supreme Court of Pakistan allowed the said appeal and remanded the case to the Chairman Evacuee Trust Property Board; the respondent No.1 remains silent and kept pending the remanded proceedings for 14-years and finally on 7-5-2005 passed the impugned order declaring that the property allotted to Abdul Razzaq is an Evacuee Trust Property. The petitioners have assailed the said order through the present petition.

2. Learned counsel for petitioners submits that the land allotted to petitioners was purchased by one Bawa Ram Das from one Karam on 4-8-1889 Chela Bawa Gandas and as such the land was the personal property of Bawa Ram Das and subsequently it was transferred to his Chela Bawa Gandas; the property had never been the property of Gaddi Kohkirana, no such title document is available in the record about the ownership of Gaddi Kohkirana. Hence the finding of respondent No.1 is against the record. Learned counsel submits that Mutation No.21 attested on 17-10-1889 and Mutation No.421 attested on 6-3-1943 is in favour of successors of Bawa Ram Das and when the subcontinent was partitioned, the property was in the name of Bawa Tulsi Das. The last owner left Pakistan in 1947 leaving behind no legal heir and as such the property become evacuee and thus was rightly allotted to petitioners. Learned counsel submits that there is no evidence available on record which shows that trust was ever created or the property was ever used for the purpose of trust. Learned counsel submits that the respondent No.1 has misread the Misl Haqiyyat for the year 1911-12. The said document clearly indicates that the remission of land revenue was given only for a limited period and after the expiry of target period, Pir Lachhman Das Gaddi Nashin was collecting the land revenue from the original owners and was depositing the same in Government Treasury. Learned counsel adds that the respondent No.1 has ignored the succession law of Hindu prevailing with reference to Guru and Chela. Under the Hindu Law, the property of Guru will devolve upon his Chela including his son except where Guru nominates his son as his Chela during his life time. He adds that the impugned order is in violation of section 10 of the Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975) (hereinafter referred to as the Act XIII of 1975). Admittedly the property was allotted to predecessor-in-interest of petitioners before the target date i.e. June, 1964 and as such the order of settlement commissioner was final in this respect. Learned counsel has relied on Muhammad Zubair and 2 others v. Government of Pakistan through Secretary, Ministry of Religious Affairs and Minorities Affairs, (Camp Office at Karachi), Islamabad and 2 others (1991 MLD 852), Hassan Muhammad v. Fateh Muhammad and others (1992 CLC 613), D.K. Soni v. P.K. Mukherjee and others (1989 MLD 2059), The Chairman, Evacuee Trust Property Board, Lahore v. The Settlement Commissioner (Land), Sargodha and two others (1985 SCMR 89), (PLD 1986 SC 1716), (1994 MLD 2195) and (NLR 1924 UC 530(sic)).

3. Learned counsel for respondents No.1 and 2 submits that under section 8 of the Act XIII of 1975 the Chairman has exclusive power to grant declaration about the status of land whether it is evacuee or evacuee trust property. The respondents Nos.1 and 2 after examining the record had come to the conclusion that the property allotted to petitioners' predecessor-in-interest was evacuee trust property. He further submits that the writ petition is not maintainable as under section 17 of the Act XIII of 1975 right of revision is available to petitioner. Learned counsel for respondent No.3 also raised objection about the maintainability of the writ petition on the ground that the Chief Administrator Auqaf has assailed the impugned order through revision before the Federal Government and as such the present writ petition is not maintainable.

4. Heard, record perused.

5. It is an admitted fact that the suit land was allotted to the petitioners' predecessor-in-interest as per RL-II dated 6-2-1962 against the verified claim of an evacuee. The Chief Settlement Commissioner vide order dated 19-12-1974 has declared the property as evacuee property. The claim of Evacuee Trust Property Board is that the evacuee trust land could not be allotted to any evacuee against its verified claim. The dispute is about the status of land has been ascertained by the respondent No.1 is its own favour. Admittedly the land was in the name of Bawa Jawala Das Chela Bawa Gandas when partition of subcontinent took place. It is an admitted fact on record that no trust deed or any document creating the trust of the suit property is available on record or ever came into existence. The registered sale deed dated 4-8-1989 is in the name of Bawa Ram Das and Mutation No.23 was attested in his favour on 19-9-1889. It is a proven fact on record that Gaddi Kohkirana was not having any title deed in his favour. Under Hindu Law, the property of Guru devolves upon Chela and in case the Guru has not nominated his son as Chela in his life time, the property will devolve upon the existing Chela of the Guru. The issue of the ownership of property Guru to Chela was considered by the Privy Council in Pandit Parma Nand v. Nihal Chand and another (25 AIR 1938 Privy Council 195) and it was held that "the properties had descended from Guru to Chela did not necessarily lead to the conclusion that a property, when acquired by a mahant, loses its secular character and partakes of religious character. When a person entered Udasi, he severed his connection with the members of his natural family. It followed that neither he nor his natural relative can succeed to his property held by the other. There was however no reason for holding that an Udasi could not acquire private property with his own money or by his own exertions. If he did not acquire private property, he could not be inherited by his natural relative but passes on his death to his spiritual heir including his Chela who was recognized as his spiritual son. The descent of the property from a Guru to Chela did not warrant the presumption that it was religious property. In Baba Kartar Singh Bedi v. Dayal Das and others (26 AIR 1939 Privy Council 201) it was held that "if certain property was held by a person as his private property. The mere circumstances that it had subsequently descended from Guru to Chela would not warrant the presumption that it was religious property.

6. The above said two dictum of Privy Council was adopted by this Court in Puj Maya Rishi and others v. L. Ram Chand and others (AIR (33) 1946 Lahore 31), and Shiromani Gurdwara Parbandhak Committee and others v. Haricharan Singh (AIR 1934 Lahore 1).

7. It is an established fact on record that Bawa Ram Das purchased the property through registered sale-deed on 4-8-1889 against consideration and Mutation No.23 was passed in his favour on 19-9-1889. After his death, a Mutation No.21 was attested on 17-10-1899 in favour of his Chela and Mutation No.421 attested on 6-3-1943 was attested in the name of Chela Bawa Ram Das and when Pakistan was created, the land was in the name of Bawa Tulsi Das as is evident from the Jamabandi Annex-J. A Mutation No.421 was attested on 6-2-1945 and order was passed as under:

8. The pedigree-table Exh.P4 shows that the original owner was Wan Jogi, the property was thus after this death devolved upon Bawa Ran Das, then his other Chela and lastly to Bawa Jawala Das when mutation was attested being Malak Qabza. It is an admitted fact on record that no trust deed is available on record nor it is proved that the character of suit property was ever of a trust. The respondent No.1 has inspired from the entry in the revenue record "Bawa Tulsi Das Chela Bawa Ahan Das, caste Faqr, Gaddi Nashin Kohkirana, Sahilwal" and on the basis of said entry in the revenue record he declared the property as evacuee one. In the entire revenue record, it is nowhere mentioned that the suit property is a property of Gaddi Kohkirana. The mutation was attested in favour of Bawa Tulsi Das Chela Bawa Atman Das. The Mutation No.23 attested on 19-9-1899 shows that this was attested in the revenue record in the following terms:

9. The said mutation clearly establishes that Bawa Ram Das has purchased this property in his personal name against consideration. Now it has to be seen that Bawa Ran Das ever created any waqf or trust or any religious endowment, the answer of this question is in negative. Hence in the absence of any document establishing that the trust was ever created by the owner of suit property, the suit land could not be termed as the evacuee trust property.

10. Section 2(d) of the Act XIII of 1975 defines the evacuee trust property that is attached to charitable, religious or educational trusts or institutions or any other properties which form part of the Trust Pool constituted under this Act. As there is no evidence available on record which shows that the property character was ever of a trust property and as such the impugned order is patently illegal.

11. It is an admitted fact that the property was allotted to the predecessor-in-interest of petitioners on 6-2-1962 against his verified claim. Under section 10 of the Act XIII of 1975, if any immovable evacuee trust property situated in rural area is transferred prior to June 1964, it will become the property of the transferee. There is no allegation against the predecessor-in-interest of the petitioners that the allotment dated 6-2-1962 is fraudulent. The only allegation is that the property was not the part of compensation pool and the settlement authorities were not authorized to allot the land to petitioners' predecessor-in-interest. The record will show that Settlement Department has transferred the suit land to Abdul Razzaq against the consideration of his verified claim.

12. In view of above, the property allotted to the predecessor-in-interest of petitioners is saved under section 10 of the Act XIII of 1975. Reliance is placed on Khalid Mahmood and others v. Ch. Ghulam Muhammad (1982 SCMR 557).

13. As far as the objection of maintainability of the writ petition is concerned, the remedy of revision no doubt is available but the same is not adequate as it will be heard by Federal Government who owns the property. The parties are in litigation since 1962 and as such there should be an end to litigation. Hence, the remedy of revision is not adequate and efficacious. The writ petition is thus maintainable.

14. In view of above, the writ petition is allowed; the impugned order is set aside and the allotment dated 6-2-1962 in favour of predecessor-in-interest of Abdul Razzaq son of Rab Khan is restored. AG/A-54/L Petition allowed.