1989 SCMR 1636 (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 "Dharamshala" "Tikano" or I‑)y other similar expression, any such property can be declared to he attached to a religious, charitable or educational trust for the purpose of section 4 of Act XXVIII of 1958" The dispute in this case relates to property hearing City Survey Nos.C/867 and 869 situated at Tando Allah Yar, District Hyderabad. The District Evacuee Trust Property Committee, the appellant herein, applied under section 4(3) of the Displaced‑ Persons (Compensation and Rehabilitation) Act, 1955 seeking a declaration that the aforesaid property is attached to a Hindu religious and charitable trust. This application wits decided by Mr. S. M. Ayllar, Settlement Commissioner with powers of Chief' Settlement Commissioner, Karachi and was dismissed vide his order dated 7‑8‑1969. Before him two extracts from tile City Survey Record were produced in which the property in the column of `holder' was entered as 'Dharamshala Charitable Dawarkadas Varindumal, minor under the Guardianship of trustee Lokumal Gltamshandas. By inheritance' It seems, no other evidence was produced and respondents Nos. 1 to 3 remained absent and were proceeded against ex parte. The learned Officer took the view that thisentry, unsupported by any other evidence, was insufficient to sustain the claim of the appellant. Further as the document indicated that the right of management of Dharamshala Dawarkadas Varindumal was governed by inheritance showed that the property was owned by private persons and not by any trust. The appellant preferred an appeal before the then Sind and Baluchistan High Court which was dismissed by a learned Single Judge of that Court. The learned Single Judge agreed with tlhc learned Settlement Commissioner that the evidence produced was insufficient to come to proper finding that the property was attached to a charitable, religious or educational trust or institution. The learned Judge observed that mere entry in the record of rights cannot determine title or proprietary rights in immovable property. ()n this sole ground the learned .Judge dismissed the appeal by his order dated 12‑3‑1973, Hence this appeal. We have heard Ch. Fazle Hussain learned counsel for the appellant but no one has appeared on behalf of the respondents. It has been urged by the learned counsel that the learned Settlement Commissioner erred in interpreting the documentary evidence produced by the appellant in support of its claim that the disputed property was attached to a religious and charitable trust as vague and inconclusive lie submitted that merely because the management of the properly which was dedicated or the purpose of Dharamsltala, a recognized religious and charitable purpose under the Hindu law devolved by inheritance does not lead to the conclusion that the property was owned by private person and not attached to a trust. He also disputed the correctness of the view adopted by the learned Single Judge that tile evidence consisting of extracts from the survey record maintained by the City Survey Department, Hyderabad was insufficient. After hearing the learned counsel we find substance in his submissions The city survey record clearly disclosed that the property was entered in the name, of "Dharamshala Charitablo". An endowment for the purpose of Dharamshala,' under the Hindu law is clearly valid as a religious and charitable purpose. So far; as the name of Dwarkadas Varindumal is concerned it seems that this person was 13 a minor under the guardianship of trustee Lokumal Cihanshamdas. The words "by inheritance" clearly apply to the office of trustee‑ship which was governed by the rule of succession or inheritance. In any case the craries in the official record taken as ii whole (cave no measure of doubt that the property was conveyed by endowment for the charitable purpose of Dharamshala and there is no indication or any other evidence produced to show that the properly was privately owned by any person. Therefore, applying the rule of preponderance of evidence the issue had to be decided in favour of the appellant that the property was attached to a religious and charitable trust. SO far its the sufficiency of evidence is concerned, we have already expressed our view in