1989 SCMR 1610 (PLP)

ZAFFAR HUSSAIN MIRZA, J.‑‑Leave to appeal was granted in this case to consider the following question of law: "Whether in the absence of any decd of Trust indicating the real purpose of trust, mere production of the extract from the Record of Rights or City Surveys which describe a property as `Dharamsala', `Tikano' or by other similar exI)rcssion, 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 Divisional Evacuee Trust Property Committee, Hyderabad, the appellant herein, had 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 seeking a declaration that property bearing City Survey No.G/262 situated at Rishighat, Hyderabad was an evacuee trust property. The application was decided by Mr. S.M. Azhar, Settlement Commissioner with powers of Chief Settlement Commissioner, who, by his order dated 23‑2‑1970 dismissed the same on the ground that mere entry in the City Survey Record showing the property in the name of a Mandir was not sufficient and that the property was shown to have been inherited by the persons whose names were entered in the record. An appeal taken to the High Court from the aforesaid order also failed vide the impugned judgment in this appeal, dated 20‑2‑1973 whereby a learned Single Judge of the then High Court of Sind and Baluchistan, Karachi held that mere entry in the City Survey Record was not sufficient to establish the character of a property as a trust without there being evidence as to where this Mandir was situated. Hence this appeal. We have heard Ch. Fazle Hussain learned counsel for the appellant but no one has appeared on behalf of the respondents. The disputed property is shown in the extract from the Property Register Card maintained by the City Surveyor, Hyderabad as `property attached to Ramdev Mandir Manager, Sobraj Mangaram, Totaram Mahraj, Rijumal Dubumal'. The property is, therefore, clearly shown in the relevant official record maintained by the City Survey Department to be attached to a temple and names of persons are shown as Managers. Under section 135‑J of the Sind Land Revenue Code and section 52 of the West Pakistan Land Revenue Act such entries have attached to them a presumption of correctness. Accordingly as held by us in Civil Appeal No.K/41 of 1973 Evacuee Trust Property Board v. Rahim Khan and 3 others this evidence was sufficient to support a finding that the property was attached to a religious and charitable trust unless evidence to the contrary was produced by the respondent No.2. Therefore, judging by rule of preponderance of evidence in civil cases, as no positive evidence was produced by respondent No.2, this evidence was sufficient to uphold the claim of the appellant. The learned single Judge has given an additional reason namely that the location of the Mandir to which the property was supposed to be attached was not disclosed in the evidence produced by the appellant, The perusal of the order of the Settlement Commissioner, however, does not show that any such question was raised in the original proceedings so that inquiry could have been made on such an issue by producing necessary evidence. This being a question of fact cannot be raised for the first time at the appellate stage and much less made the foundation of the order in appeal without affording the parties an opportunity to produce such evidence. Be that as it may, on the state of evidence that existed before the learned Single Judge and the Settlement Commissioner the property was clearly shown to be attached to a Mandir itself which evidence being unrebutted, was sufficient to declare the same to be attached to a religious trust. 1n the original application the appellant had claimed further relief that transfer documents issued in favour of respondent No.2 may be cancelled. However, on the present record sufficient details with regard to the transfer of this property are not clear. According to section 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 (Act XIII of 197) despite the property being evacuee trust property transfers made bona fide against satisfaction of varified claims in respect of which P.T.Ds. were issued prior to June, 1968, have been validated and saved. Therefore, while declaring the disputed property to be evacuee property we direct that so far as the transfers are concerned, effect is to be given to section 10 of Act X111 of 1975. The appeal is allowed in these terms with no order as to costs. M.A.K./D‑43/S Appeal accepted: