1991 PLP 2206 (SCMR)

AJMAL MIAN, J.

By this common judgment, we intend to dispose of the above two appeals, which have been filed with the leave of this Court against a common judgment dated 10-1-1984 passed by a Division Bench of the Peshawar High Court in F.A.O. No.23 of 1970, filed by respondent No.1 against the order dated 31-12-1969 passed by the Settlement Commissioner, Peshawar Division, Peshawar, upon present appellants Petitions Nos.9, 12 to 16 and 18 of 1967, allowing the same. The appellants in Civil Appeal No.3-P of 1984 filed a direct appeal tender Article 185(2)(d) of the Provisional Constitution Order, 1981, and also obtained leave to appeal by an order dated 27-2-7991, whereas the appellants in Civil Appeal No.699 of 1990, filed the appeal with the leave of this Court. Leave to appeal was granted to consider the question, whether the appellants were entitled to compensation for the construction made by them after the expire of the lease period even if the land is to be held as evacuee trust property.

2. The facts to be noted are that one Cosain Rau Mand son of Cosain Lala Mand, by his will dated 13-4-1901 (which was registered on 20-4-1901), appointed his wife to succeed him after his death as the heir in respect of immovable property and land measuring 49 kanals 10 marlas Mahal Tokra No.l bearing Khasra Nos.301, 302, 298 and 300 with adjacent house on 1-1/2 storeys of katcha pucca construction and the courtyard of the Thakar Dawara with the boundary, on the condition that after her death, Sundar Dass son of Ganpat Rai, the husband of her predeceased daughter would succeed. It appears that Sundar Dass through a lease-deed dated 22-5-1947 registered on 1-7-1947, leased out 49 kanals 13 marlas of agricultural land, hereinafter referred to as the land, which was the subject-matter of the above will bearing Khasra Nos.2S1, 284 and 285 (probably Khasra Nos. were changed as they do not tally with the Khasra Nos. under the will) in favour of Sardar Gul Khan son of Muhammad Yousaf and Ghulam Sarwar son of Ghulam Haider Klan for a period of 20 years from 20-10-1966 in lieu of Rs.16,000 on the condition that on the expiry of the lease, he would pay for the development and improvement over the land in the shape of houses and Sarai etc. It further seems that the above lessee inducted as co-lessee one, Qazi Muhammad Aslam to the extent of 1/3 share. Pursuant to bile terms of the lease, they raised certain construction on the land. After partition of India, they approached the Deputy Custodian for confirmation of the above lease, which was done by the Deputy Custodian by his order dated 1-5-1956 with the addition that no further construction would be raised without the permission. Against the above condition, the above lessees filed an appeal which was allowed by the Custodian Evacuee Property, Northern Region, by his order dated 3-6-1957 and the above condition was deleted on the ground that the Custodian Department had no power to modify the terms of the lease. Upon expiry of the above lease period, it seems that respondent No.l claimed the land with the Thakar Dawara as the evacuee trust properly. Thereupon, the above three lessees/their legal heirs and sub-lessees claiming through them, filed aforesaid petitions under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, hereinafter referred to as the Act, which were contested by respondent No.l. The learned Settlement Commissioner, Peshawar Division, recorded evidence and heard the parties, and held by his aforesaid order that Thakar Dawara was a property attached to a religious institution and, hence, evacuee trust property, but held that rest of the property belonged to Sundar Dass individually and, therefore, evacuee property. The relevant portion of the order reads as follows:

"From a perusal of the deed of will EXh.P.W.1 / 1 and the subsequent documents added to lease Exh.P.W.l/2, it would be seen that a portion m the very property described as Thakar Dawara as is commonly known is a place of religious sanctity. It would not be taken commonly as a place of family gathering or even a commercial gathering. A specific mention in the details of property in the two documents of one as a Thakar Dawara would be indicative that the portion of the property held a special status obviously of religious nature. As is obvious from the details the said Thakar Dawara was housed in a portion of the house and had a well and courtyard to serve it. Since nothing contrary to the evident conclusion about this section of the property to have been of a religious nature has come forth from the petitioners, it would, therefore, be the obvious conclusion that this section of the property was of a religious nature and would thus fall within the category of the property attached to a religious institution and hence evacuee trust. With the aforesaid conclusion, therefore, the ultimate finding would be that except for the section of the property shown as Thakar Dawara in the deed of will Exh.P.W.1 which, however, is declared to be an evacuee trust property, the rest of the property, belonged to the individual Sundar Dass s/o Ganpit Rai resulting in the disposal of the petitions accordingly:'

3. The remaining portion of the property was excluded by the learned Settlement Commissioner from the purview of evacuee trust property for the following reasons:

"Had there been a declaration of the property to any religious institution, a mention thereof would specifically be found on the said deeds which alone would be reliable about the status of the property. Moreover, mention of a section of the property as a Thakar Dawara, would not mean a change in its status so as to be known as a religious institution or attached to the same. Thakar Dawara would at the most, according to the learned counsel, be a place meant for ceremonial congregation and not for any worship."

4. Against the above order of the Settlement Commissioner, respondent No.1 filed the aforesaid F.A.O., which was allowed by a Division Bench of the Peshawar High Court by the aforesaid judgment for the following reasons:

"The perusal of the revenue papers would show that originally the land was private property. Though we have no document when it was converted into `Trust Property' but in the settlement record of 1895-96, it has been shown in the ownership of Thakar Dawara of Baba Burma Nand. According to Urdu-English Dictionary by Dr.S.W.Fallon published by Markazi Urdu Board, Gulberg, Lahore, Thakar Dawara means a temple, a building in which idols are kept. In other words, Thakar Dawara is a place of worship of Hindus and there can be no two opinions that property can be dedicated for its maintenance etc. Subsequently, continuously the property has been shown in the ownership of Thakar Dawara. Thus as far as the Revenue Record is concerned, the land in suit stands alienated (Waqf) to `Gurdawara',"

5. The appellants, being aggrieved by the above judgment of the High Court, filed the above direct appeal and petitions for leave to appeal, which were granted to consider the above question.

6. In support of the above appeals, M/s. Bashir Ahmad Ansari and Qazi Atiqur Rehman, learned counsel for the appellants, have vehemently contended that since no evidence for the creation of the alleged trust was produced by respondent No.l, the High Court was not justified in reversing the finding recorded by the learned Settlement Commissioner, on the basis of an entry in the Revenue Record for the year 1895. On the other hand, Ch. Fazal-i-Hussain, learned counsel appearing for respondent No.l, has contended that in the absence of any reliable evidence, the above entry in the Revenue Record coupled with the fact that there is Thakar Dawara on the land, is sufficient to prove that the property in question was an evacuee trust property.

7. It may be pertinent to reproduce the entry in the above Revenue Record of 1895 pertaining to 49 kanals 11 marlas of land bearing Survey Nos.281, 284 and 285 from the column Nam Malik ma ahwal which reads as follows:

8. From the above-quoted entry, it is evident that the owner of the land is' shown as a " Mander " under the management of a religious office-holder. The contention of the learned counsel for the appellants and also the conclusion of the learned Settlement Commissioner that since no evidence was produced for the creation of the trust, a religious or charitable trust could not have been proved, seem to he contrary to what has been held by this Court in more than one cases. In this regard, it may be pertinent to refer to the case of District Evacuee Trust Committee v. Muhammad Umar and others 1990 SCMR 25, wherein the question involved was, whether the suit property was attached to a religious or charitable trust or not? The evidence relied upon by the District Evacuee Trust Committee was in the form of the extract from the Property Register Card describing the property as follows:

"Sobhraj son of Manikrai Dharamsala Property Trustees. (1) Ramchand (2) Kishinchand. (3) Chatur Bhaj son of Sobhraj." The Court, while repelling somewhat similar contention which has been advanced before us today, held as follows:

"

5. It is difficult to subscribe to the view taken by the High Court that in the absence of the trust deed a property could not be declared to be attached to a religious or charitable trust. It is to be noticed that a document creating a trust under the Hindu Laws does not require registration. In this case, all the trustees were Hindus who left Pakistan at about the time of Independence. The trust deed must have been in their possession. That being so, to demand that the trust deed must be produced before a property can be declared as attached to a religious or charitable trust, is in the circumstances a tall order. On the other hand, there is no reason why the presumption of correctness which attaches to official record, after it remains unrebutted, should not be given effect in deciding the nature of the property."

9. The above view has been reiterated by this Court in a recent judgment in the case of Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others PLD 1991 SC 586, wherein the above portion of the above-referred judgment has been quoted with approval and the following observations have been added:

"Thus, the view of this Court on this question is that if sufficient prima facie evidence is adduced for showing that the property in question was attached to a religious or charitable institution and this evidence is not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property is attached to a religious or charitable trust is not essential and the matter can be decided on the rule of preponderance of evidence."

10. However, M/s. Bashir Alrmad Ansari and Qazi Atiqur Rehman have submitted that the execution of the will by Cosain Rau Mand on 13-4-1901 and the execution of the lease-deed on 22-5-1947 by Sundar Dass, belie the above entry in the Revenue Record. According to Mr. Bashir Ahmad Ansari, a private Hindu religious trust can be put to an end by the creator of the trust. Reliance was placed by him on section 424 from the book "Principles of Hindu Law by Mulla" Ninth Edition, which reads as follows;

"Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested the endowment is a private one (f). Where the main purpose of the endowment was the puja of a deity established by the settlor or in a house, and the surplus income was directed to be utilised for feeding the poor and helping the students, it was held the trust was a private trust and that all the trustees must join in its execution (g). The distinction between public and private endowments is important, for it has been held by the Judicial Committee that, where a temple is a public temple, the dedication may be such that the family itself could not put an end to it, but in the case of property dedicated to a family idol, the consensus of the whole family might give the property another direction (h). This is regarded as one test to determine whether the endowment is private or public (i). It has accordingly been held that where the heirs of the founder are unable to carry on the worship of the family idol out of the income of the endowment, they may transfer the idol and its property to another family for the purpose of carrying on the worship. Such a transfer, if made without consideration and for the benefit of the idol, is valid and binding on the heirs of the transferors (j)."

11. The above contention is devoid of any force as there is no evidence on record that any private religious trust was created by an individual. On the contrary, the above Revenue Record of the year 1895 indicates that it was a public religious trust. The property was shown to have been vested in the " Mander " through the incumbent of a religious office and not in any individual. There is a concurrent finding of the Settlement Commissioner and the High Court on the question that the above " Mander " was a public religious trust and because of that, even the Settlement Commissioner excluded the portion of the " Mander " from being treated as a private evacuee property. Even the Revenue Record for the year 1929 also contains the following entry in the column of "Nam Malik ma Ahwal which reads as follows:

It is, therefore, evident that the High Court was justified in holding that the " Mander " Thakar Dawara and the land attached to it, was property attached to a religious trust. We may point out that in order to make a property attached to any charitable, religious or educational trust or institution in terms of subsection (2) of section 4 of the Act, it is not necessary that the entire property should be used for the aforesaid purpose. What is required is, that the property should be attached to a trust or institution of the above nature. Since Thakar Dawara admittedly is a religious institution, the land attached to it, is also trust property. In this behalf. reference may be made to the judgment of this Court in the case of Devachand Muljimal v. The Deputy Settlement and Rehabilitation Commissioner, Karachi etc. PLD 1965 SC 356, wherein Hamoodur Rahman, J. (as his Lordship then was) observed as follows:

"The view that a property could only be excluded from the Compensation Pool if it was actually being utilised for a charitable, religious or educational purpose, does not appear to be correct, for, the Act of 1958 merely requires that the property should be attached to such a trust. Thus a property, though not used specifically for such a purpose, might still come within the category excluded from going into the Compensation Pool, if its income is to be utilized for any of the specified purposes:"

12. We are, therefore, inclined to hold that the High Court was right in holding that the Thakar Dawara and the land attached to it were evacuee trust properties.

13. Adverting to the question, whether the appellants/lessees are entitled to receive compensation in terms of the lease, it may be observed that it was vehemently urged by Mr. Fazal-i-Hussain that the Evacuee Trust Board is not bound to pay any compensation as the Custodian was not entitled to permit the appellants /lessees to raise the construction on trust property as the management and control was vested in him temporarily till the appointment of the new trustees. In this regard, it may be pertinent to quote the following portion of the order of the Custodian dated 30-6-1957 passed by him upon appellants/lessees' appeal against the aforesaid order dated 1-7-1956 passed by the Deputy Custodian, Evacuee Property, which reads as follows:

"It is conceded by the gentleman who is representing the Rehabilitation Department before me that this condition which has been given in the lease-deed is without any legal justification. Apart from this admission of Mr. Saifullah, I am also inclined to take the view that the Custodian Department or the Rehabilitation Department has no jurisdiction whatsoever, at least no provision of law to that effect has been brought to my notice authorising it to add or to subtract from the conditions of the lease which are specifically laid down in the registered deed. It has been rightly pointed out by the learned counsel for the appellant that the Deputy Custodian while passing the order in question has not taken into account the property worth considerable amount, which has already been constructed on the site in question. Both as the admission of Saifullah and on legal grounds, I have no other alternative but to accept this appeal and delete the following sentence from the order of the Deputy Custodian. "The applicants will not make any alteration, improvement or addition to the land in question without the permission of the lawful authorities." 13-A. Mr. Fazal-i-Hussain was unable to point out any provision of law contrary to what was held by the Custodian in the above portion of the order. On the contrary, reference may be made to the following judgments of this Court:

(i) Muhammad Khan and others v. The Chief Settlement and Rehabilitation Commissioner, West Pakistan and another PLD 1962 SC 284; wherein this Court has held as follows:

"The view is also fortified by a consideration of the fact that the Central Government itself appears to have been interpreting these provisions in the narrower sense. The Displaced Persons (Land Settlement) Rules, 1959, make it clear that permanent settlement of lands has to be made only to the extent of the right or interest abandoned by an evacuee therein. The Rehabilitation Scheme of 1952, framed under section 7(1) of the Pakistan Rehabilitation Ordinance XIX of 1948, as amended from time to time, also contains an exemption in favour of lands mortgaged by evacuees in favour of Muslims resident in Pakistan (Cl.4-A). This very scheme was adopted in tote under section 14 of the Act and it was not till the 17th of February 1961, that Para. 4-A (ii) of the Scheme was deleted, which bears on this exemption. It may be mentioned that the acquisition notification in the present case was issued long before this amendment, on the 8th of June 1960, so that the amendment does not affect the position in the instant case. There was a letter, issued by a Deputy Secretary to the Government of Pakistan, Ministry of Rehabilitation, on the 27th of November 1959, to the Chief Settlement and Rehabilitation Commissioner, vide p.65 of the record, which inter alia recognises that mortgagees could not be compelled to surrender the lands in their possession without redeeming the mortgages. It was suggested therein that negotiations may be started with them by offering them compensation for parting with their rights but that if they declined to come to terms, Government could always acquire the lands in question under the Land Acquisition Act. The departmental construction, therefore, of the relevant provision, until recently, has always been in favour of the contentions raised by the appellants:" (ii) MA. Hafees Khan and 9 others v. Riaz Ahmad Mehra and 3 others 1983 SCMR 803; in which, this Court has dilated upon the above aspect and reiterated the principle enunciated in the above case, as follows:

"In regard to urban, properties mortgaged by locals with evacuees, the Chief Settlement and Rehabilitation Commissioner had issued instruction under Memo. No.90-POL 61, dated 5-12-1961, followed by a Press note dated 8-12-1961 (appearing at pages 543 and 544 of MA. Latif s book on Displaced Persons (Compensation and Rehabilitation) Act (1969 Edition), wherein the authorities had been clearly told to take measures to afford the mortgagors an opportunity to redeem their property. No action appears to have been taken in the present case although the Department was fully aware, on account of the applications made by Mst.Padmavati in November 1947 and by Riaz Ahmed in 1959, that non-evacuee mortgagor's interest was involved in the property. Anyway, the first two contentions have been rightly resolved by a reference to the principle enunciated by this Court in Muhammad Khan's case wherein in respect of evacuee land mortgaged with possession to locals it was held that the interest of the mortgagee locals could not be acquired by the Government under section 4 of the Displaced Persons (Land Settlement) Act, 1958, that notwithstanding the words "free from all encumbrances" in that section the mortgagee locals were entitled to retain possession of land until the mortgage was redeemed and that it was not necessary for the mortgagee in order to safeguard his rights to have sought a declaration under section 22 of Act XII of 1957."

14. We are, therefore, of the view that the lessees under the lease are entitled to receive compensation from respondent No. 1 if it were to get the possession of the land, of which lease was executed.

15. However, we are also inclined to hold that if there is a Scheme for the transfer of evacuee trust property, the appellants/lessees are entitled that their request for the transfer of the suit land be considered in accordance with such scheme. But, if there is no such scheme, the appellants are entitled that their request for grant of lease may be considered by respondent No.l and/or other competent authority. If respondent No.l does not either transfer or grant lease of the suit land in favour of the appellants/lessees, it is bound to pay the amount of compensation in terms of the expired lease.

16. We appoint Mr. Shah Nawaz Khan, ex-Chairman Wapda and ex- Secretary of the Ministry of Communication, Government of Pakistan as a Commissioner for visiting the site in presence of both the parties and assessing the amount of compensation in terms of the lease. We would also fix tentative fee at Rs.25,000 of Mr. Shah Nawaz Khan, which will be paid in the first instance a by the appellants/lessees. The Commissioner shall submit his report to the High Court in the above FA.O. and the High Court will decide the question of further fee, if any, and also the question of acceptance of the report of the Commissioner and/or all other allied questions in respect thereof.

17. We would, therefore, allow the above appeals partly to the above extent, with no order as to costs. AA./A-879/5 Order accordingly.