1989 PLP 1897 (SCMR)

SHAFIUR RAHMAN, J.‑‑The District Evacuee Trust Committee, Hyderabad, was granted leave to appeal to examine whether the view taken by the Sind High Court by its judgment dated 6‑12‑1972 under section 4 subsection A (4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act affirming the decisions of the Settlement Commissioner dated 4‑8‑1969, was in accord with law.

2. Properties bearing City Survey No.C/1678 to C/1680 in Taulka Hyderabad District Hyderabad were transferred to Bashiruddin the contesting respondent under the Act and a P.T.O. was issued to him on 25‑10‑1959 followed by a P.T.D. in December, 1964. These properties were recorded in the Survey record as "Tikano" which meant either a temple or a place of residence of Brahmins. On the 24th of September, 1966 an application was moved by the appellant under section 4 subsection (3) of the Act claiming that these properties be declared as evacuee trust properties and the transfer made in favour of Bashiruddin be cancelled. The Settlement Commissioner by his order dated 4‑8‑1969 dismissed the application observing as hereunder:‑ "The contention of the learned counsel for the respondent is, that there is no evidence on the record to say that the property in suit is 'Tikano' or a trust. That a similar application, was filed previously before the Additional Settlement Commissioner, who by his order, dated the 28th July, 1961, Exh. 4 held that the property in suit was not a trust property. That since then the property has been transferred to respondent Bashiruddin, who was issued his P.T.O., dated 25th October, 1959 and P.T.D., dated the 5th December, 1964, that this transfer was in the knowledge of the applicant trust. That this application was presented on the 26th September, 1966 after a delay of several years, for which there was no reasonable cause. On these grounds, it is prayed that this application be dismissed. The entry in Exh. 3 is as follows:‑‑ "Name of trust or institution Tirathdas Chelo with full particulars about Lekhraj, Tikai:o nature, kind and purpose of Charitable" Trust. No other evidence has been produced in support of these entries, which are vague and inconclusive. It cannot be said whether a trust was created and if was created, it was a private or public trust. This unsupported entry is not an adequate evidence to accept the contention of the applicant trust. In spite of the order, dated the 28th July, 1964 which was against the applicant trust, vide Exh.4 this application was filed two years afterwards. There can be no justification for this long delay."

3. An appeal was thereupon taken to the High Court under section 4 subsection (4) of the Act but it was dismissed by the High Court observing as hereunder:‑‑ "As I have said, the only evidence is that of the entries in record of rights where the property is described as `Tikano'. But I have before me a judgment of my Lord the Chief Justice in Miscellaneous Appeal No.89 of 1967, in which it has been held that even if it be assumed that an extract from the record of rights is evidence of title, the record of rights would only show that the property was a part of trust property, but would not show as to what was the nature of the trust, and therefore, such piece of evidence cannot be relied upon for coming to a finding that the property was attached to a trust of the kind contemplated by section 4 (3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Same view was taken in Lahore decision, Evacuee Property Trust Board v. Lahore Improvement Trust and another P L D 1969 Lah.

243. Likewise, it was held m Karachi decision, Badruddin v. Kazi Munshi and others P L D 1972 Kar. 101 that the object of the trust should be proved to be charitable, religious or educational, and it was not enough to show the property to be in the name of the Trust."

4. Ch. Fazl‑e‑Hussain, Advocate, the learned counsel for the appellant has drawn our attention to the City Survey Record indicating the character of the property immediately before independence, and according to him it was sufficient "to establish all the requirements of the law for showing it to be an evacuee trust property of the type indicated in the Act.

5. The respondent was not present or represented at the time of hearing.

6. The City Survey Record which was before the Settlement Commissioner as well as before the High Court contains the following relevant entries in respect of the properties under consideration:, (1) Survey No. 1678 Area 32‑8 Holder in 19 Origin of the title (so far as traced). Tikana Date of transaction 19‑12‑44 Transaction By will of Labhsing R.No.26 dt. 26‑10‑36 Stts: & C.S.O's Order New Holder Tirithdas Chelo of Labhsing. Encumbrances He shall have no right to alienate, gift, mortgage or otherwise dispose of the property. (2) Survey No, 1679 Area 20‑4 Holder in 19 Origin of the title (so far, as traced) Tikana (Charitable) Manager Date 19‑12‑44 Transaction By will of Labhsing No‑26 dt. 26‑10‑36 New Sets: S.C.S.O's Order, Holder Tirithdas Chelo of Labhsingh. Encumbrances He shall have no right to alienate, gift, mortgage or otherwise dispose of the property. (3) Survey No. 1680 Area 20‑6 Holder in 19 Origin of the title (so far as traced). Tikana (Charitable) Manager. Date 19‑12‑44 Transaction By R. Will of Labhsing No.26 D/ 26‑10‑36 Stts: S.C.S.O.'s Order. New Holder Tirathdas Chelo of Labhsing. Encumbrances He shall have no right to alienate, gift, mortgage otherwise dispose of the property.

7. These entries of the Survey Record carry a presumption of correctness and there is no evidence in rebuttal or such as may cast a doubt on the correctness of these entries. These entries to establish that the property is religious and charitable in character and also that they have been so treated since 26‑10‑1936 on the basis of a will and further that the Manager has no right to alienate, gift, mortgage or otherwise dispose of the property. These facts distinguish on fact and law this case from all others referred to in the judgment of the High Court. For example in the case of Evacuee Property Trust Board v. Lahore Improvement Trust and another P L D 1969 Lah. 243 a house was shown to be used as an institution and the nature of the institution was not shown to be either religious, charitable or educational. In the case of Divisional Evacuee Trust Committee, Karachi v. Abdullah and 2 others 1970 S C M R 503 Nasarpuri Community Punchayat was not shown to be such an institution. In the case of Badruddin v. Kazi Munshi and 2 others P L D 1972 Kar. 101 the property was shown not attached to religious, educational or charitable institution. In the Privy Council case of Pandit Parma Nand v. Nihal Chand and another AIR 1938 Privy Council 195 the devolution of property from Guru to his Chela by itself was held not to be indicative of the existence of the trust. In the case before us apart from the mention of "Tikano" the word "charitable" also exists and the property is shown to be vesting in Manager under a dispensation where he has no right to alienate, gift, mortgage or otherwise dispose of the property. It, therefore, on merits clearly establishes that the property was attached to charitable and religious institution and the finding of the Settlement Commissioner and the High Court on that account must be reversed.

8. The rights of the transferee Bashiruddin, however, are not to be dislodged merely because of the declaration that the property is evacuee trust property. Section 10 of the Act XIII of 1975 provides as hereunder:‑‑ "Validation of certain transfers.‑‑ (1) An immovable evacuee trust property:‑ (a) if situated in a rural area and utilised bona fide under any Act, prior to June, 1964, for allotment against the satisfaction of verified claims; and (b) if situated in an urban area and utilised bona fide under any Act for transfer against the satisfaction of verified claims in respect of which Permanent Transfer Deeds were issued prior to June, 1968, shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be re imbursed to the Board and shall or part of the Trust Pool. (2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court. (3) If it is decided that a transaction referred to in subsection (1) is not bona fide, the Chairman may pass an order cancelling the allotment or transfer of such property: Provided that no decision under subsection (2) or order under subsection (3) shall be taken or passed in respect of any property without giving the person affected as reasonable opportunity of being heard."

9. In order to reclaim the property from Bashiruddin action will be E required to be taken if at all the Chairman Evacuee Trust Property considers it expeditious and the requirements of the law on the subject are fulfilled. Subject to D this qualification the appeal is allowed and the judgments of the Settlement Commissioner and High Court are set aside and the property in dispute is declared to be evacuee trust property attached to a religious and charitable institution. No order is made as to costs. A.A./D‑48/S Appeal accepted.