IFTIKHAR HUSSAIN CHAUDHRY, C J.--- Through this petition under section 115 CPC the Deputy Administrator, Evacuee Trust Property Board, Faisalabad, has challenged the judgment and decree, dated 16th of March 1998 of a learned Additional District Judge, Faisalabad, where by appeal filed by the petitioner was dismissed and the judgment and decree, dated 23rd of January 1996 of the leaned Trial Judge, whereby the suit for declaration filed by Ghani, respondent No.1, claiming to be the owner of the suit land, and of Haider Chaudhry, respondent No.2, being in possession as a lessee from respondent No.1, had been decreed.
2. The dispute pertains to agricultural land measuring 187-Kanals 1-Marla, comprised in Killa Nos.1,2,9,10 and 11 of Square No.35 Killa Nos.2 to 8,13 to 18,24 and 25 of Square No.36, Khata No.561, located within the revenue estate of Mauza Choor Najra/Chak No 124/J.B.,Tehsil and District Faisalabad. As per claim of plaintiff-respondent No.1, a displaced person from East Punjab, the said land being evacuee property, was proposed in his name, against his duly verified claim, on 11th of February 1960 at Khata No.561 of RL-II of the said-Chak, and.Was confirmed in his favour on the 24th of April 1960 It was averred in the plaint that the petitioner herein being hands in gloves with the Revenue filed staff and falsely .Claiming the land as Evacuee Trust Property was all out to forcibly dispossess the plaintiffs-respondents. The suit was contested by the petitioner by pleading that the land was Evacuee Trust Property; that the Assistant Commissioner (City), Faisalabad, had got an inquiry conducted into the genuineness of the allotment of Ghani which was found bogus, and that on a petition filed by plaintiff-respondent No.1 himself, the Chairman, Evacuee Trust Board had held vide order, dated the 3rd of January 1995 that the land in dispute was Evacuee Trust Property and the allotment of respondent No.1 being not bona fide, he declined to validate the same. Preliminary objections about the plaintiffs having no cause of actions; the suit being barred by the principle of res judicata, and that the Civil Court had no jurisdiction to entertain the lis, were taken by the petitioner-defendant No.2, besides pleading that the plaintiff-respondent No.1 was not the owner and plaintiff-respondent No.2 was not in possession. After framing Issues, arising out of the afore-referred divergent pleadings, the parties were put to trial.
3. Haider Chaudhry, plaintiff-respondent No.2 appeared as PW-1, and deposed that Ghani s/o Nizam Din, Plaintiff-respondent No.1 was allotted the suit ' land measuring 23 acres in the year 1960 of Khata No.561 of RLII of Chak No.124/J.B. Tehsil and District Faisalabad, against his claim of an equal land abandoned by him in India; that the witness took from the allottee the land on patta from April 1990 to May 1991 against payment of Rs.23,000/- and started cultivating the same; that since the Assistant Commissioner, Faisalabad, intended to initiate proceedings under section 32 read with section 34 of the Colonies Act for his eviction, he had to institute the suit; that plaintiff No.1 had been allotted land by the Settlement and Rehabilitation Department; that neither the Central nor the Provincial Government had any concern with the same, and that plaintiff-respondent No.1 had appointed Muhammad Iqbal and Muhammad Amin as his attorneys. Remarkably, PW-1 had not been cross-examined either by the learned counsel for the Evacuee Trust Property Board, or by the learned counsel representing the Province of Punjab, .District Collector and the Collector (City), Faisalabad and thus his entire deposition in the ,examination-in-chief had gone unchallenged. Ch. Muhammad Amin, Attorney of plaintiff-respondent No.1 appeared as PW-2. He tendered in evidence certified copy of RL-II showing allotment of the suit land and confirmation thereof in the name of plaintiff-respondent No.1. The plaintiffs produced document (Ex.P/1 to Ex.P/17) to which reference has been made in detail in the impugned judgments of the Courts below. Needless to mention that PW-2 was also not cross-examined on behalf of any of the defendants. Surprisingly, Muhammad Azim (PW3), who too deposed that the suit land was owned by plaintiff-respondent No.1, had not been cross-examined. Thus, the entire evidence produced by the plaintiffs- respondents remained unchallenged.
4. On the other hand, Najam-ul-Hassan, Deputy Administrator, Evacuee Trust Property Board, Faisalabad, is mentioned to have appeared as DW-1, who produced certain documents, including copy of record-of-rights for the year 1946-47 (Ex.D/1). However, his statement has not been brought on record, perhaps for the reason that the same was not very helpful to the case of the petitioner.
5. The Learned Trial Judge over-ruled the objections qua jurisdiction of the Civil Court in entertaining the suit, cause of action, and lack of locus stand of the plaintiffs in approaching the Court The Issue regarding the objection founded on res judicata was also answered against the defendants. After evaluating the evidence. The learned Trial Judge held vide judgment, dated the 23rd of January 1996 that plaintiff-respondent No.1 was the lawful owner of the suit land which had been validly allotted in his favour. Accordingly, he decreed the suit of plaintiff-respondent No.1. As mentioned at ' the outset, the appeal filed by the Chairman, Evacuee Trust Property Board having been dismissed by a learned. Additional District Judge Vide judgment and decree, dated the 16th of March 1998, this revision petition has been filed to assail the aforementioned decisions.
6. I have heard the learned counsel for the parties at length and have also gone through the record made available.
7. During the pendency of the revision petition, learned counsel for the petitioner had, at one stage, raised objection (Vide interim order, dated 24-11-1998) that "the plaintiff-respondent No.1 herein is a fictitious person" whereupon the learned judge, then seized of the case, had directed production of Ghani, respondent No.1 in the Court. In the subsequent order, dated 8.2.1999 it was, however, mentioned that "one Abdul Ghani, respondent No.1 had entered appearance....................... " There can thus be no doubt that' the allottee was not a fictitious person. The allottee being a genuine person is further established by the facts that vide C.M. No.1-C of 2003, Rana Mumtaz Ahmed sought himself to be impleaded as a party on the ground that Ch. Mumtaz Iqbal, Attorney of Ghani, had executed a Sale Agreement in his favour regarding the suit land: Muhammad Rafique and Syed Muhammad Azam Shah filed C.M.No.1-C of 2004 seeking their impleadment by averring that they had purchased the suit land from respondent No.1, Ghani, and yet another person, namely, Rana Muhammad Saleem filed C.M.No.1-C of 2005 for being impleaded as a party alleging that Ghani had sold the land to one Kharay Khan of Jaranwala from whom he had purchased the same. Since the said applicants allege to have acquired rights qua the suit land pendent elite, therefore, no formal order for impleading them as parties to the revision petition has been passed because to implead them formally as parties to the revision petition would have been tantamount to opening Pandora's Box. However, their learned counsel have been heard to assist the Court in deciding the questions involved in the main revision petition.
8. M observed earlier, PWs 1 to 3 had unequivocally deposed regarding the allotment and confirmation of the suit land in favour of plaintiff-respondent No.1, his possession as well as giving the land on patta. Curiously enough, they had not been cross-examined on behalf of any of the defendants, meaning thereby that their statements, having remained unchallenged, and are thus deemed to have been accepted even on behalf of the petitioner herein. In Syed lqbal Hussain vs. Mst. Sarwar Begum (PLD1967 Lahore 1138) it was observed at page 1158 of the Report as follows:- "It is significant to point out that this witness was not cross-examined by the counsel for the landlady which means that the statement of this witness was not being taken exception to and was rather accepted."
Similar views were expressed in Qasim vs. State (PLD1967 Karachi 233) Mst Zar Jan vs. Mst Najmun Nisa and others (PLD 1969 Peshawar 118), Said Habib vs. Haji Matiur Rehman (1980 CLC 1450) and Muhammad Suleman vs. Abdul Ghaffar (1982 C.L.0 1717).Lt is well- settled position in law that if some fact is deposed in the examination-in-chief by a witness, the failure to question the same in cross-examination tantamounts to admission of the same by the party against whom that evidence had been given. In the circumstances when the evidence of the plaintiffs was not challenged, their suit was liable to be decreed on this ground alone.
9. To begin with, learned counsel for the petitioner contended that the suit land was "Evacuee trust property" and, therefore, the impugned decision of the Courts below are liable to be set at naught.
Section 2(d) of Evacuee Trust Properties (Management and Disposal) Act (No. XIII) of 1975 defines "Evacuee trust property to mean the evacuee trust properties attached to charitable, religious or educational trusts or institutions or any other properties which form part of the Trust Pool constituted under this Act". The "Trust Pool" was constituted under section 7 of the Act, which reads as follows:- "7. Trust Pool. For the purposes of management, maintenance and disposal of evacuee trust property a Trust Pool consisting of the following shall be constituted, namely:-
(a) all. Evacuee trust property which immediately before the commencement of this Act formed part of the Trust Pool constituted under the Act:
(b) any evacuee property declared under section 8 to be evacuee trust property:
(c) Government property or any other property exchanged with any evacuee trust property;
(d) Any property purchased or constructed by the. Board;
(e) Sale proceeds of any evacuee trust property;
(f) All profits and income received or derived from any evacuee trust property;
(g) All rents and other amounts received, realized or recoverable in respect of evacuee trust property."
Nothing has been brought on record to show that the land in dispute had ever been regarded as a part of the "Trust Pool." However with the help of the learned counsel for the parties, I have examined the entire record filed with the revision petition to determine the nature of the suit land.
Learned counsel for the petitioner, by relying on Record-ofRights for the year 1946-47, submitted that it was "evacuee trust property" and that the learned Chairman, Evacuee Trust Property Board was fully justified to have granted declaration to that effect on the basis of the entry in the Revenue Record without, in any way, going into any other aspect, such as whether the land was attached to any religious, charitable or educational trust or institution or whether or not the income arising from the land- was applied 'to any such trust. In support of his contention, he relied on a number of reported decisions, which will be considered in the later part of this judgment.
The entry in the Revenue Record, relied upon by the learned counsel for the petitioner, reads as follows:- In the 20th Century Standard Dictionary (Urdu into English) by Bashir A Qureshi, the meaning of the Word " is stated as: "cow", "ox", "bull . In Feroze-ul-Lughal "by Al-Haj Maulvi Feroze-ud-Din (New Edition), published by Feroze Sons Ltd., the words " mean " The word can notes almost the same meaning, viz: a sitting place. Thus, was a place where the cow, ox and bull used to be kept. Such a place, by no stretch of imagination, could be held to be a "Charitable, religious or educational institution" so as to be regarded as an "evacuee trust property" within the meaning of Act XIII of 1975. Besides, not a shred of evidence has been brought on record by the petitioner to show that the suit land was either by itself a trust, or was attached to any trust as contemplated by the Act, or that the property used to yield any income, which was applied to any trust created for religious, charitable or educational purposes. Needless to add that there is also nothing on record to show that the "Society" had any nexus with any "charitable, religious or educational" institution, because the land owned by every "Society", irrespective of its objects and aims could not be held to be an evacuee trust property.. Moreover, in most of the Jamabandis brought on record, in the column of ownership, the entry made is: "Central Government". Or "Central Government through the Rehabilitation Commissioner. I have, therefore no doubt whatsoever that the suit land was not an "evacuee trust property" but was only an "evacuee property" and by rightly treating the same as such had lawfully been utilized by the Settlement Authorities for transfer to plaintiff-respondent No.1 in satisfaction of his claim, duly verified by the Central Record Office. The decision reported as Government of 'Pakistan vs. Nizamuddin (1994 SCM R 1908) is almost on all fours. The property subject-matter of the dispute in the cited case was No.LY-10/90-II-B/63, Lyari Quarters, Karachi. By treating the same as evacuee property, it was transferred to one Ramzan Ali by the Settlement Authorities under the Displaced Persons (Compensation and Rehabilitation) Act, 1958. Later on, however, the Chairman, Evacuee Trust Property Board declared the same as evacuee trust property and his order was affirmed by the Secretary, Ministry of Religious and Minority Affairs. A Division Bench of the High Court of Sindh quashed those orders in the exercise of Constitutional jurisdiction. The Government of Pakistan assailed the decision of the High Court before the Hon'ble Apex Court. In the relevant records, the property was shown as "Hindu Sahta Panchayat by trustees (1) Dharma Ishaichand, (2) Hemandas Ghandomal, (3) Karamsingh Nonoomal". The decision of the High Court quashing the Chairman's order was upheld by the Hon'ble Supreme Court by inter alia observing as follows:- "It is quite clear from the order passed by the Chairman of the Board that there was neither any trust deed available in respect of the property to show its nature nor any evidence was led in the case to show that the property was attached to any religious, charitable or educational trust or the income arising from the property was applied to a trust created for religious, charitable or educational purposes. There is nothing in the extract relied upon by the learned counsel for the appellants, to indicate that the suit property was either a religious or charitable or an educational trust or it was attached to any of the trust of such a nature. In the absence of any evidence to show the nature of the trust, or to prove the fact that the income arising from the suit property was being applied to charitable, religious or educational purposes, the order passed by the Chairman or the Board holding the property as an evacuee trust property was an arbitrary order based on no evidence." . (Emphasis supplied).
"In the present case, the entry relied by the appellants in the record of survey did not show that the suit property was either a religious or an educational or a charitable nature. These entries also do not show that the suit property was attached to a trust of religious, charitable or educational nature. In the circumstances, there was no evidence available on record before the Chairman of the Board to reach the conclusion that the suit property was an evacuee trust property."
The above authoritative pronouncement of the Hon'ble Supreme Court is aptly applicable to the facts of this - case, and clinches the controversy regarding the real nature of the suit land.
10. Learned counsel for the petitioner, however, laid much stress on the fact that by order, dated the 3rd of January 1995, the Chairman had declared the suit land as evacuee trust property in exercise of his power under section 8 of Act. XIII of 1975 and, therefore, the, jurisdiction of the Civil Court stood ousted to give any finding contrary thereto qua the suit land. In support of his submission, be placed reliance on section 8 of Act XIII of 1975 which reads as follows:- "8. Declaration of property as evacuee trust property .(1) If a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court.
(2) If the decision of the Chairman under subsection (1) is that an evacuee property is evacuee trust property, he shall, by notification in the official Gazette, declare such property to be, evacuee trust property.
(3) If a property is declared to be evacuee trust property under subsection (2), the Chairman may pass an order cancelling the allotment or alienation, as the case may be, take possession and assume administrative control, management and maintenance thereof.
Provided that no declaration under subsection (2) or order under subsection (3), shall be made or passed in respect of any property without giving the person having interest in that property a reasonable opportunity of being heard.
When asked whether any notification, as contemplated by subsection (2) above, regarding the nature of the property in dispute as evacuee trust property had been published in the official Gazette, learned counsel for the petitioner could not produce one. At any rate, no such notification has been brought on the record.
11. Beside, in the present case, after careful examination of the entire evidence on record, the first Appellant Court, agreeing with the learned Trial Judge, has recorded the following findings of facts:- "This is an admitted fact on the record that no trust deed in respect of the suit property is in possession of the appellant. There is also no evidence to establish that the suit property was attached to any religious, charitable trust or the income arising from the suit property was applied to a trust created for religious, charitable trust or educational purposes."
"The appellant is claiming this property as Evacuee Trust Property on an isolated entry recorded in Jamabandi for the year 1946-47 (Register Haqadaran Zameen) Exh. D-1 where the property is mentioned as Gaoshalla Society Bar, Lyallpur. This so called entry had not been carried further in subsequent record of rights and ultimately suit property was recorded in the ownership of Central Government which is evident from the copies of record of right Exh.P-13, Exh.P-16 and Exch.P-17. The land was therefore validly allotted /confirmed to the plaintiff as an evacuee property against his verified claim at R.L.II Khata No.561 (Exh.P-2)on 24-4-1960. Needless to add, the plaintiff was a refugee claimant Exh.P-3 is a letter from the A. C/Deputy Settlement Commissioner (Land) City Sub-Division, Faisalabad to Chairman, Evacuee Trust Property Board dated 13-10-1987 whereby attested copy of register R. L. II regarding suit property was sent to him. Muhammad Afzal Patwari Central Record Office, Board of Revenue vide his statement Exh.P-4 confirmed the entries existing at register R.L.II Exh.P2. The Patwari admitted the transfer in favour of the plaintiff and confirmed the entry of register R.L.II as being valid. Therefore, the order passed on 16-5-1992 by the A.C. City Sub Division, Faisalabad on the recommendation of E.A.C.R. Dated 3-3-1991 Exh.P.- 18 are illegal, void, without authority and as such ineffective on the rights of the plaintiffs. Hence, the subsequent superstructure raised thereon shall fall to the ground. DW-1 has admitted it to be correct that the Evacuee Trust Department has no non-Muslim Waqfnama in their record. There was no entry of ownership of Evacuee Trust Board in column of ownership . The impugned order of the Chairman dated 3-1-1995 had not been acted upon since no Notification, as required by law, has been issued pursuant there to by him. There is nothing on the record to show that the suit property ever remained part to Trust Pool and was ever declared as Evacuee Trust Property before 3-1-1995.
While, the Revenue Authorities are not implementing allotment of the plaintiff in the Revenue Record despite the fact that this poor man is a genuine and valid allottee of the suit property through R.L.II Khata No.561 of Chak No.124/JB. The respondents/plaintiffs invoked the general jurisdiction of Civil Court by filling a suit for declaration and permanent injunction with the prayer to safe-guard his allotment and possession and to resist the coercive steps of the Evacuee Trust *Property Department. The document Exh.D-1 shows the name of Gaoshallas, Provincial Government and under the administrative control of Panchayat. This document does not make the disputed property as part of any Trust. The following requirements are essential for determining the status of a trust property. (PLD 1975 Lahore 960):-
(I) The author of the alleged trust;
(ii) The intention to create trust by words or act;
(iii) The purpose of the trust;
(iv) The trust property; and
(v) The beneficiaries.
If the test determined by the Honourable Supreme Court vide 1994 S.C.M.R.1908 is applied in this case it would be clear that the appellant has failed to prove that the suit property was Evacuee Trust Property. Therefore, in true perspective of the case, the conclusion arrived at by the learned Trial Court vide Issues Nos.4, 4-A & 4-B is just and appropriate and as such the findings recorded thereon are upheld."
Learned counsel for the petitioner has not been bale to show from the record that the afore quoted findings of facts arrived at by the learned Additional District Judge, affirming those of the learned trial Judge, are either the result of misreading or non-reading of any piece of evidence.therefore, feel no hesitation in upholding the concurrent findings of facts arrived at by both the Courts below that the suit land was not an evacuee trust property, and had lawfully been allotted to plaintiff- respondent No.1 in satisfaction of his verified claim.
12. I have carefully examined the long chain of reported decisions, relied upon by the learned counsel for the petitioner, but find that none of the same is attracted to the peculiar facts of the present case nor the same in any way support or advance the contentions raised herein on behalf of the petitioner, as will be seen from the following analysis of the case -law cited at the Bar.
This Court relying one Divisional Evacuee Trust Committee vs. Abdullah (1970 SCM R 503), did not consider a mere entry in a sale deed sufficient to establish existence of a Trust in the case reported as Deputy Administrator, Evacuee Trust Property, Lahore vs. A .R. Chaudhry (1981 CLC 1006). In the cases reported as (1) Evacuee Trust Evacuee Trust Property Board. Rahim Khan (1989 SCM R 1605)
(2) Divisional Evacuee Trust Property Committee Hyderabad vs. Deputy Commissioner(1989 SCM R 1610)and (3)District Evacuee Trust Committee vs. Mashraf Khan (1989 SCM R 1636) it was held that if in the Record-of-Rights the disputed property was described as "Dharamsala", "Tikano" or by any other similar expression, the same would clearly indicate that the property was a religious endowment dedicated to a temple or in any case, for religious purpose,. These cases have thus no bearing , at all, on the question involved herein. The case reported as District Evacuee Trust Committee vs. Muhammad Umar (1990 SCM R 25) is also of no assistance to the petitioner because the property in dispute in that case was "Sobhraj son of Manikrai Dharamsala Trust Property Trustees (1.) Ramchand, (2) Kishanchand and (3) Chatur Bhaj son of Sobhraj." Reliance on Qazi Akbar Jan and other vs. The Chairman, District Evacuee Trust Committee, Peshawar and others (1991 SCM R 2206), is also inapt. In the said case, upon an application of the transferee, the learned Settlement Commissioner, Peshawar Division recorded evidence; heard the parties and held that "Thakar Dawara was a property attached to a religious institution and,hence, evacuee trust property." When the matter went to the Peshawar High Court, a Division Bench, by referring to the entries in the Revenue Record relating to 1895-96 held that "according to Urdu-English Dictionary by Dr S.W.Fallon publithed 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 had been shown in the ownership of Thakar Dawara. Thus as far as the Revenue Record is concerned, the land in suit stands alienated (Waqt)to Gurdawara."
By reproducing the entry in the Revenue Record of 1895, the Hon'ble Supreme Court held at page 2210 of the Report as follows:- "From the above-quoted entry, it is evident that the owner of the land is shown as a under the management of a religious office-holder."
No doubt in the case reported as Evacuee Trust Property Board vs. Mst. Zakia Begum (1992 SCM R 1313) it was held that: "In case, a question arises whether transfer is bona fide or not, it shall be the Chairman whose decision shall be final and shall not be called in question in any Court S.10(2)." But, in the same judgment it was held: "However, section 10 (1) Provides that if an evacuee trust property had been utilized bona fide for transfer against satisfaction of claims in respect of which Permanent Transfer Deed was issued prior to June, 1968, that shall be deemed to have been validly transferred by sale to Chief Settlement Commissioner and the proceeds shall be reimbursed to the Board." In the said case, there was no dispute about the nature of the property being evacuee trust property, rather it was an admitted fact as will be seen from the following observations in paragraph 3 of the judgment:- "Learned counsel for the appellant has contended that in view of sections 8, 10 and 14 of Act XIII of 1975, the Court did not have the jurisdiction in the matter. . He also submitted that the counsel for the lady, respondent No.1 had conceded before the High Court that the property was evacuee trust property." (Emphasis supplied). Thus in the cited case the only dispute was whether the transfer/utilization of the evacuee trust property was bona fide or not. The question whether it was evacuee property or evacuee trust property was not involved in that case. In the present case, the order of the Chairman was conspicuous by an absence of reference to any "Charitable, religious or educational trust or institution" to which the suit land was attached. Even the bare minimum particulars for recording findings under section 8(1) of the Act were lacking Moreover, the decision in the afore-referred case proceeds on facts which are distinguishable from those of the one in hand. The case reported as Mst. Mariam Bai and others vs. Islamic Republic of Pakistan and 5 others (1993 SCM R 515) also proceeds on absolutely different premises inasmuch as validation of transfer of admittedly an "evacuee trust property" was claimed, but it was foundthat Mst. Mariam Bai was the holder of only a PTO, and PTD had not been issued prior to June 1968 which was sine qua non for seeking validation 'of transfer. Besides, in her case the two other conditions , viz that the property situated in an urban area must have been utilized bona fide Linder the Act for the purpose of transfer thereunder, and the utilization must be against the satisfaction of verified claim were also not satisfied. Here, the suit land, as observed above, not being an evacuee trust property, the question of validation of the transfer by the Chairman did not arise. The facts of the case reported as-Evacuee Trust Properly Board vs. Muhammad Siddique (1995 SCM R 1748) are also poles apart from those of the one in hand. In that case, during pendency of civil suit, the learned Civil Judge seized of the matters, made a reference to the Chief Settlement Commissioner in accordance with the provisions of section 5(2) of the Displaced Persons (Land Settlement) Act (No.XLVII) of 1958 for decision whether the suit land was attached to any Evacuee Trust. The leaned Settlement Commissioner, as the delegate of Chief Settlement Commissioner, after affording full opportunity of hearing to the parties had held on 11-7-1967 that the land was Evacuee Trust Property, being attached to "Thakkarr Dawara". On the basis of said decision entries in the Revenue Record were made accordingly. After about 10 years, in 1977, suits were filed to challenge the entries in the Revenue Record. In view of these peculiar facts of that case, it was held as follows:- "we find that the plaintiff in both the suits had alleged that the land in the suit was once declared as Evacuee Trust Property by the Settlement Commissioner (Land). They, however, relied that the transfer in their favour having taken place prior to 1964, it was protected under the law. It is, therefore quite clear that a question had arisen in the proceedings before the Civil Court whether the transfer of the suit land in favour of respondents was protected under section 10(1) of the Act XIII of 1975. The decision on this issue rested within the exclusive jurisdiction of Chairman, Evacuee Trust Board whose decision was final as provided under section 10(2) ibid. The jurisdiction of Civil Court to decide this question was totally barred under section 14 of the Act XIII of 1975......... Much stress was laid by the learned counsel for the petitioner on Seth Tirath Das vs. Divisional Evacuee Trust Committee (1995 PSC 1321). In paragraphs 2 and 5 of the judgment, the following facts relevant for the present purpose, find mention:- "Suffice it to state that in 1938 an Association of Hindu residents of Karachi, for the protection and preservation of cattle, was registered as a company under section 26 of the Indian Companies Act.
The licence referred to the objects as "promoting religion, charity or any other useful object" and prohibited the payment of any dividend to its members. This Association was called the Karachi Pinjrapore Association."
"Suffice it to state that ultimately Mr. A . M. Jan, Custodian E.P, West Pakistan, by his order dated 263-1962 held that as the Association was founded for public purpose of a religious or charitable nature, all the properties acquired by it, whether by way of grant, gift or donations were trust properties."
The decision of the custodian was upheld even by the Hon'ble Apex Court. Later on, being aggrieved of some Notification, the appellant in the said case along with other members of the Hindu community challenged the same in the High Court of Sindh, and having failed there, approached the Hon'ble Supreme Court. The contention raised on behalf of the appellant was that it was only the trustees' interest in the trust properties held by the Association which had become evacuee property, whereas the properties as such had remained all along non-evacuee. Relying on the earlier decision, the Hon'ble Supreme Court held as follows:- "The argument that the properties of the Association were non-evacuee in nature, because under the law only the trustees had become evacuees but not the trust properties, was not accepted by the Bench which heard the petition for leave to appeal. . It was observed, that the Custodian had held on 26-3-1960 that these properties were evacuee trust properties and consequently they were to be managed in accordance with the provisions of section 7(2) of Act XII of 1957, which determination was not assailed and has therefore became final. . "(underlining is by me.)
The ratio decidendi of the cited case has thus no bearing on the question involved herein In the next case relied upon by the learned thunsel for the petitioner and reported as Muhammad Shafi vs. Joint Secretary, Ministry of Religious and Minority Affairs (1997 SCM R 227), the Settlement Authorities had transferred a well to Muhammad Shafi, appellant. On a reference by the Assistant Administrator, the Chairman, Evacuee Trust Property Board held that the well' had been dedicated by its Hindu owner for public use and was thus waqf. It was noticed that transfer of the same property had been refused to one Amir Ali way back in the year 1962. The order of the Chairman was affirmed in revision. Constitutional petition was dismissed by the High Court. Appeal was dismissed by the Supreme Court by observing that the impugned orders were "adequately and strongly grounded on a number of considerations which lent ample support from the oral and documentary evidence" that the property was evacuee trust property. But, in this case both the Courts below, after considering all pros and cons of the matter, have concurrently held that the suit land was "evacuee property" and not "evacuee trust property'. After examining the record, I have also come to the same conclusion. The cited case is thus of no help to the petitioner. Instead of lending any support, the case reported as Federal Government of Pakistan vs. Khurshid Zaman Khan (1999 SCM R 1007) and relied upon by the learned counsel for the petitioner goes against his contention. In that case, the land measuring 66Kanals, located in Mauza Jia Moosa. Tehsil and District Lahore, was owned by Rai Bahadur Kishan Kishore. The record, however, revealed that in the year 1944, Rai Bahadur Kishan Kishore transferred land measuring 33Kanals out of total 66 Kanals in favour of Sanatam Dharam College Society and Punjab Medical Education and Relief Society though mutation entries which were sanctioned by the Revenue Officer but the same were not given effect to in the record-of-rights and, therefore, in the special Jamabandi prepared after Partition the entire land (66-Kanals) was shown to be agricultural land owned by Rai Bahadur Kishan Kishore. The allotment of the land by the Settlement Department in lieu of claim of the allottee was maintained by the Hon'ble Supreme Court. In Muhammad Hussan vs. 'Evacuee Trust Property Board (2000 SCM R 1184). The property subject-matter of the dispute was "Victoria Diamond Jubilee Hindu Technical Institute, Punjab, Lahore" some portion of which having been rented out, the rental was utilized by the said Institute itself. It was in these circumstances held that the property was "attached to educational institution." Since in that case PTD had been issued prior to June 1968, it was observed that the transferee could seek remedy by making application to the Board and if any one felt aggrieved of the decision of the Board he may seek remedy in accordance with law. Thus - this decision is also of little help to the petitioner. The case reported as Deputy Administrator, Evacuee Trust Property Karachi vs. Abdul Sattar (2000 SCMR 1979) is again not relevant because in that case Permanent Transfer Deeds had not been issued prior to June 1968. Still referring to Mst Mariam Bai and others vs., Islamic Republic of Pakistan (1997 SCM R 515) It was held in the cited case that "bona fide transfers of such immovable evacuee trust properties could be validated where allotment had been made against satisfaction of a verified claim or where PTD had been issued prior to June, 1968." In Abdul Karim vs. Joint Secretary and others (2003 PSC 714), Leave was refused by observing that "no valid order of allotment of the land or its confirmation was passed by the Settlement Authorities at the relevant time. The entries on RL-II were also found to be interpolated. The existence or otherwise of a valid allotment order was essentially a question of fact which was decided by the respondent No.2 after holding detailed enquiry and hearing the parties to which no exception could be taken in the facts had circumstances of the case." In the instant case, as observed already, there was a valid order of allotment and confirmation thereof in favour of plaintiff-respondent No.1. In the circumstance, the cited case has also no bearing on the present case. In. Evacuee Trust Property Board vs. Ahmed (PLJ 2004S.C.67) the property was found to have belonged to "the temple known as Mandar Sant Jawhar Singh Wala" as, per entries in the pre-Partition revenue record. The decision is thus of no avail to the petitioner.
Learned counsel for the petitioner contended that the Hon'ble Supreme Court had expressed somewhat different view in Muhammad Usman etc . Vs. Secretary to Government of Pakistan (PLJ 2004 S.C.524) than the one taken in Nizamuddin's case (supra). The contention is fallacious. The- property in dispute in Muhammad Usman's case as per entries in the record, was a "charitable hospital" and the Settlement Authorities had declared the same as evacuee trust property, which finding having been challenged by some of the occupants, including Haji Muhammad Hussain, Predecessor of Muhammad Usman etc, was not disturbed up to the Hon'ble Apex Court. In the proceedings initiated by the successors of Haji Muhammad Hussain, the Chairman, Evacuee Trust Property Board once again returned the same verdict. Having failed before the Federal Secretary concerned, and the High Court, they approached the Hon'ble Supreme Court. While dismissing the Appeal, it was observed as follows:- "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. Vs. Niazamuddin (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 had fairly developed in this behalf and this Court in Evacuee Trust Property Board vs. 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 vs. 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.
The evidential circumstance, as existing in the present case, was also taken notice of by this Court in Secretary, District Evacuee Trust-Property vs. Qazi Habibullah (PLD1991SC 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 purpose. Similar view was exactly reiterated by this Court in Qazi Akbar Jan vs. The Chairman, District Evacuee Trust Committee, Peshawar (1991 SCM R 2006)." (Emphasis supplied). - From above, it will be seen that the Hon'ble Supreme Court had not taken a different view in Muhammad Usman's case from that in Nizamuddin's case, rather the same view had been re- iterated.
In the last judgment cited by the learned counsel for the petitioner viz: Deputy Administrator, Evacuee Trust Property Board vs. Mst Huma Bai (2004 M LD 376), it was held that the Civil Court had no jurisdiction to entertain the suit because the suit property "was declared as Evacuee Trust Property" vide Notification dated 15-7-1963 (EXh.D/2)" and, therefore, "by virtue of section 4(2) of the Displaced Persons (Compensation and Rehabilitation, Act 1958 it did not form part of the Compensation Pool so as to be available for transfer under any Schemes framed for transfer of evacuee properties, but formed part of separate trust pool". The proposition is no doubt, undisputable, but as observed above, no Notification as contemplated by sub-section (2) of section 8 of the Act XIII of 1975 was ever issued with regard to the suit land, which otherwise has not been found to be evacuee trust property.
13. Learned counsel for the petitioner vehemently argued that the allotment in favour of the plaintiff respondent-1 was found to be bogus on enquiry got conducted by the then Assistant Commissioner (City), Faisalabad, and for that reason the learned Chairman, Evacuee Trust Property Board, had rightly, declined to validate the allotment made in favour of Plaintiff- respondent No.-1. The contention is without force, as it was nobody's case that it was a pending proceeding at the time of repeal of the Settlement Laws or that the matter had been remanded by the superior Court to a Notified Officer. According to record, proceedings appear to have been initiated on an application dated 21st October, 1990 which was not even entertain-able. The enquiry was ordered on the said application which was conducted by EAC (R), Faisalabad and the resultant Report of the Extra-Assistant, Commissioner (R), Faisalabad dated the of March 1991 as well as the order dated 16th May 1992 being coram non judice were void ab initio and could not have formed a valid basis for the order dated the 3rd January 1995 passed by the learned Chairman, Evacuee Trust Property Board in this context. It may also be observed that the learned counsel has lost sight of the following observations of Appellate Court:- "Before parting with this judgment, I find it is the Chairman only who felt aggrieved against the decision of the learned lower Court and preferred this appeal while the Province of Punjab, the Deputy Commissioner/Collector, District Faisalabad, and A.C./Collector, City Sub-Division, Faisalabad, Whose orders dated 30-3-1991 and 16-5-1992 were also set aside by the impugned judgment and decree did not come forward to file an appeal and as such the findings of facts recorded there-in would remain intact and hold the field. The appellant/Chairman has also agitated only the jurisdiction of Civil Court in the gist of arguments, without disputing the validity of conclusion recorded on question of facts by the learned Trial Court obviously being conscious of the fact that the Evacuee Trust functionaries do not have Waqfnama regarding the suit land in their record. Neither they placed any document in this behalf on the file."
This Position could not be controverted by the petitioner with reference to any material or evidence on record. In these circumstances, the question arises whether the declaration of the learned Chairman about the status of the land as evacuee trust property could be fatal to the 'transfer. The Question was answered in Muhammad Siddiq vs. Chairman, Evacuee Trust Property Board Government of Pakistan and another (2001 YLR 2661) in the following terms.
"With regard to (a) answer would be in the negative. Determination of question whether property was Evacuee Trust Property or not would only be for the purpose of deciding question whether Evacuee Trust Property Board was entitled to recover price of property from the Settlement Department."
Reliance in this regard was placed on 1980 Law Notes (Lahore) 742).
14. It was vehemently contended by the learned counsel for the petitioner that since allotment in RL-Il in favour of the plaintiff- respondent No.1 was not carried further in the subsequent "Jamabandis"therefore the allottee stood denuded of the allotment and had no cause of action for the suit. This argument, no doubt, should have been a strong tool in the hand of the petitioner/defendants, on account of the dicta laid down in Ahmad Shah vs. Fazal Rahim. (1975 SCM R 372); Muhammad Anwar vs. M. A. Wasti (1975 SCMR 375) and Mirza Hashim Baig vs. Settlement and Rehabilitation Commissioner (1984) which is to the effect that the jurisdiction of the Settlement Authorities was not foreclosed to uncover cases of fraud and illegalities, but unfortunately the argument lacks unequivocal supportive evidence, and inaction on the part of Revenue and Settlement Authorities in not assailing the impugned judgments/decrees, prevents this Court in applying the dicta to present case. On the other hand plaintiff's case is supported by Muhammad Siddiq vs. Chairman, Evacuee Trust. Property Board, Government of Pakistan and another (2001 YLR 2661) and Muhammad lrshad and others vs. Chairman, Evacuee Trust Board and others (2001 SCM R 704).
15. Learned counsel for the petitioner also argued that the suit could not have been filed in view of the provisions of Sections 8(1), 9 (2) and 14 of the Act XIII of 1975. The respondents on the other had contended that suit land was proposed in favour of plaintiff-respondent No.1 in the year 1960 and nobody objected to the land being treated as evacuee nor any proceedings were initiated under section 5(2) of the Displaced Persons (Land Settlement) Act, 1958 seeking declaration about the "trust'' nature of the suit land till the repeal of Settlement Laws in the year 1974 and enactment of Evacuee Trust Properties (Management and Disposal) Act, XIII of 1975 and proceeding were initiated under section 8 after about 12 years and the relevant provisions stood struck down by the Hon'ble Federal Shariat Court (Vide 1992 FSC 188), the suit was competently filed, entertained and heard by the lower Courts. The plaintiffs had not only challenged the order of the learned Chairman, Evacuee Trust Property Board but had also assailed certain acts of the functionaries of the Revenue Department. The concurrent findings of the Courts below that suit land was not "evacuee trust property" have not been found to be militating against record, as such, it would be unfair to non-suit the plaintiffs and to direct them to approach the Federal Government now for an academic exercise only.
16. Keeping in view present position of record, the findings of the lower Courts on various issues are upheld and civil revision petition is dismissed without any order as to costs.