Sardar Muhammad Raza Khan, J.--The Chairman Evacuee Trust Property Board, Government of Pakistan, Lahore vide his order dated 21.3.1998 and the Secretary, Government of Pakistan, Ministry of Religious Affairs, Zakat, Usher and Minorities Affairs, Islamabad vide his order dated 18.11.1998 determined the status of Property No, SI-100-S4, Nisbet Road, Lahore and declared it to be evacuee trust property.
2. Muhammad Usman and 8 others challenged the aforesaid orders before Lahore High Court in Writ Petition No, 571/99 which was dismissed by a learned Single Judge on 8.3.1999 and hence this appeal filed after leave of Court, which was granted to consider as to whether their existed on record ample evidence to declare the status of the property as aforesaid and whether the entry qua the existence of a charitable hospital in record was sufficient for the purpose.
3. Before adverting to the question of fact it is important to remark that as far back as on 2.5.1963, the Deputy Settlement Commissioner had declared the same property as evacuee trust property.
Some of the occupants including Haji Muhammad Hussain (the predecessor of Appellants Nos, 1 to 8 before us) filed an appeal before the Additional Settlement Commissioner against the order dated 2.5.1963 which was accepted on 30.7.1963 by declaring the property to be evacuee property and by directing its transfer in favour of the appellants. A revision before Settlement Commissioner succeeded and the property was declared to be an evacuee trust. Such finding was challenged before the High Court in Writ Petition No, 661R/1964 which was dismissed in limine against which leave to appeal was also refused by this Court on 14.10.1964. This background taken from record is sufficient for us to conclude that property in dispute stood already declared as evacuee trust property even up to this Court.
4. Not contented with the final declaration, another petition under Section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act 1958 was moved before Chief Settlement Commissioner. It was dismissed on 29.5.1967. Another Writ Petition No, 799-R/1967 was filed which was also dismissed on merit. Letters Patent Appeal No, 141/1971 was filed and vide order dated 15.2.1992 it was directed that Chairman Evacuee Properties Trust Board Lahore be resorted to under Section 8 of the Evacuee Trust Properties (Management and Disposal) Act XIII of 1975, for, he was the appropriate authority to decide the question whenever it arose. In consequence thereof the impugned orders dated 21.3.1998 by the Chairman, Evacuee Trust Board and 18.11.1998 by the Secretary to Government of Pakistan were passed against which also the writ petition failed and hence this appeal. All the narration aforesaid would indicate that the appellants kept the matter alive, one way or the other, despite the fact that the order dated 14.10.1964 of this Court had already given finality to the verdict that the property in dispute was an evacuee trust property. There the matter was clinched once for all and should not have been reopened in view of this Courts finding in Evacuee Trust Property Board, Lahore v. Syed Abdus Saleem (1990 SCM R 143).
5. According to record the property is known as Eeshwardas Free Hospital. A hospital giving free treatment to the patients was established on the site prior to the partition of 1947 and so it was exempted from payment of taxes. The hospital was established by the sons of Eeshwardas. It is also a matter of record that a grandson of Eeshwardas who visited Pakistan in the year 1984 expressed his appreciation of the manner in which the hospital was still being run free of charges.
6. Against the aforesaid evidence on record, the learned counsel for the appellants came up with the argument that it was not a sufficient evidence unless a proper document for the creation of trust as required by law was pressed into service. That, as such evidence was not produced, the mere entries of record qua existence of free hospital should not have been relied upon by the authorities to declare the status of the property as evacuee trust property. It may be stated at this juncture that the non-muslim creating such trust had left the country after partition and hence the document if any must have been taken along by the owner of such property to India and hence any such document even if in existence was not possible to be procured either by V- Government or by the Settlement Authorities or by the Evacuee Trust Board.
7. No doubt evidence is required to show the nature of trust or to prove the fact that the income arising from the property was being applied to charitable, religious or educational purposes, in the light of Government of Pakistan v. Nizamuddin (1994 SCM R 1908) but the question in the instant case is as to whether the evidence alluded to above was sufficient for such declaration and as to whether any specific document for the creation of trust was required to be produced, in the circumstances.
8. The law has fairly developed in this behalf and this Court in Evacuee Trust Property Board v.
Rahim Khan (1989 SCM R 1605) has held that an entry of inquiry register of City Survey Department showing the property as temple was sufficient, in the absence of any evidence to the contrary, that it was a religious endowment dedicated for a religious purpose. Such entries having been prepared by public officials in the discharge of their official functions carried a presumption of correctness as per verdict of this Court in District Evacuee Trust Committee v. Muhammad Umar (1990 SCM R 25) which further went on to hold that the onus is shifted to any claimant to show that the entries were incorrect or unreliable. In the instant case the appellants have utterly failed to produce any evidence in rebuttal of the entries concerning the existence of a free hospital which also was exempt from the payment of taxes.
9. The evidential circumstance, as existing in the present case, was also taken notice. of by this Court in Secretary, District Evacuee Trust Property v. Qazi Habibullah (PLD 1991 SC 586). Therein it was held that if sufficient prima facie evidence indicating the attachment of property to a religious or charitable institution, available on record, was not displaced by any reliable evidence, the burden of proving actual creation of trust was not necessary to be discharged. The important conclusion drawn by this Court was that in such circumstances, the matter could be decided on the rule of preponderance of evidence. If such rule of preponderance is adhered to in the instant case, we have sufficient un-rebutted prima facie evidence that the property in dispute was a free hospital dedicated for charitable purposes. Similar view was exactly, reiterated by this Court in Qazi Akbar Jan v. The Chairman, District Evacuee Trust Committee, Peshawar (1991 SCM R 2206).
10.In view of sufficient prima facie evidence on record and the law that has so far developed, we are of the considered view that the property in dispute was repeatedly and rightly declared by the authorities as well as by Courts as evacuee trust property. The appeal having no substance at all, is hereby dismissed with costs.