ZAFFAR HUSSAIN MIRZA, J.-The dispute in this case related to a shop in property bearing C. S. No. C.
2124 situated at Shahi Bazar, Hyderabad consisting of two shops and a residential unit. This was originally evacuee property and appears to have been transferred to occupants by P.T.Os. Before December 1969. Subsequently the Evacuee Trust Property Committee treated the property in question as trust property and referred the case to the Additional Settlement and Rehabilitation Commissioner, who on 31-8-63 sent the case to Deputy Settlement Commissioner for disposal. The Deputy Settle--ment Commissioner (Judicial), Hyderabad by his order dated 10-6-1964 declar--ed the property in question not to be an evacuee trust property in question attached to a religious, educational or charitable trust and upheld the transfer documents issued to the occupants Hakim Abdur Rahim and Muhammad Yasin. In the meantime, however, the shop in dispute in the present proceedings was put to public auction in favour of the appellant by the Deputy Settlement Commissioner on 25-3-1964 which was confirmed by the Additional Settlement Commissioner on 29-4-1964. A P. T. O. Was issued to the appellant on 30-7-1964 followed by a P. T. D. On 8-8-1965.
2. In February 1966 respondent No. 2 moved the Settlement Commissioner under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, ,1958 as amended by Ordinance XIII of 1964 (hereinafter to be referred to al the Act) for declaration that the property in dispute is evacuee trust property. In these proceedings all the three transferees including the appellant were impleaded as respondents. This application was disposed of by the learned find Additional District Judge and Settlement Commissioner, Hyderabad by his Judgment dated 2-2-1967 whereby the claim of respondent No. 2 was upheld and property in dispute was declared to be an evacuee trust property. The appellant challenged the decision by way of appeal under subsection (4) of section 4 of the Act before the erstwhile High Court of Sind & Baluchistan, Karachi. The learned Single Judge of the said Court by his judgment dated 28-9-1971 dismissed the appeal and upheld the decision of the IInd Additional District Judge and Settlement Commissioner, Hyder--abad. This Letters Patent Appeal arises out of the said judgment of the learned Single Judge.
3. Under section 4 of the Act before its amendment by Ordinance XIII of 1964 on 28-12-1964 a compensation pool was created consisting, inter alia, of all evacuee properties acquired under section 3. Subsection (2), section 4 provided as under; "Immovable evacuee property attached to any charitable, religious or educational trust ; and such other evacuee property as may be specified in this behalf by the Central Government by notification in the official Gazette, shall not form part of the Compensation Pool constituted under subsection (1)."
By the aforesaid amending Ordinance subsection (2) of section 4 was amended and two new subsections (3) and (4) were added thereto. The newly-added subsections read as follows :- "(3) If a question asises whether an evacuee property is attached to a charitable, religious or educational trust or institution or not, it shall be referred to the Chief Settlement Commissioner whose decision thereon shall be final and shall not, except as provided in subsection (4), be called in question in any Court: Provided that no order under this subsection shall be passed without giving the persons interested a reasonable opportunity of being beard.
(4) Any person aggrieved by an order under subsection (3) may, within 30 days of the order, prefer an appeal to the High Court."
Another section 4-A was inserted by the aforesaid amendment which created the Trust Pool for the purpose of administration, maintenance, management and disposal of the immovable evacuee properties attached to charitable, religious or educational trusts or institutions, consisting, inter alia, of "all such property acquired under section 3".
4. The first contention raised on behalf of the appellant is that the order passed by the Deputy Settlement Commissioner (Judicial), Hyderabad dated 10-6-1964 having attained finality whereby the status of the property in question was determined as non-trust property, the Settlement Commissioner had no jurisdiction to reopen the matter and entertain the claim of the second respondent under section 4(3) of the Act. It was urged by counsel that before the constitution of the Trust Pool under section 4-A by the amendment with effect from 28-12-1964, all evacuee properties acquired under section 3 except those that were specified by the Central Government by notification in the official Gazette under the unamended section 4(2), formed part of the Compensation Pool and, therefore, the Deputy Settlement Commissioner had jurisdiction to transfer the same under the Settlement Schemes which transfers were not liable to be challenged under Section 4(3) after the amend--ment. It was further argued that the order of the Deputy Settlement Commissioner was liable to be called in question only by way of appeal and revision under sections 19 and 20 of the Act, but no such remedy was sought by the second respondent. We find no force in the contention and agree with the learned Single Judge that the Deputy Settlement Commissioner had no jurisdiction to decide the question whether a particular evacuee property was or was not attached to a religious or charitable trust within the meaning of subsection (2) of section 4 of the said Act as was held by the Supreme Court in Devchand Muljimal v. Deputy Settlement and Rehabilitation Commis--sioner PLD 1965 SC 356We might add that under section 22 read with section 25 of the Act finality attaches to the orders passed by the Settlement Authorities only if the order is passed with jurisdiction within the four corner of the Act and in respect of matters which such Settlement Autho--rities are empowered under the Act to determine. Since question of the status and the nature of the property as trust property or otherwise was beyond the competence of the Deputy Settlement Commissioner, no finality would attach to his Order in this behalf and the second respondent was, therefore, entitled to invoke the jurisdiction of the Special Tribunal under the amended provisions of subsection (3) of section 4.
Also the bare perusal of subsection (2) of section 4 clearly makes out that all immovable evacuee properties attached to any charitable, religious or educational trust did not form part of the Compensation Pool. Clearly the provisions regarding the exclusion of properties notified in the official Gazette by the Central Government relate to "such other evacuee properties" which may be specified in the notification to be excluded from the Compensation Pool. This 1-3 clear from the word "and" between the two clauses of section 4(2). The scheme of the Act before the amendment quite clearly envisaged the constitu--petition of a Compensation Pool excluding the trust properties and properties specified in this behalf by the Central Government for which under section 16-A the Chief Settlement Commissioner was to prepare scheme for disposal of such evacuee properties attached to trusts or institutions referred to in subsection (2) of section 4.
5. The next submission on behalf of the appellant relates to the merits of the case. It was contended that the evidence on record clearly made out that the property in dispute was not attached to any charitable, religious or educational trust or institution and consequently the learned Settlement Commissioner and the learned Single Judge erred in holding that it was so attached. The argument was that the decision of the question had proceeded on the basis of a single piece of evidence, namely, the entries in the City Survey Record showing 'the property to be tikano' which means a mandir or temple. The argument was that a mere entry in the Land Records showing the ownership of the property vesting in the temple was not sufficient basis for holding that the property was attached to a religious trust or institution, in absence of any other evidence clearly establishing that the property was dedicated by a clear and unequivocal intention and that such intention was carried into effect. It is not correct to state that the case has been disposed of on the basis of a mere entry in the Laud Records. Before the Deputy Settlement Commissioner the extract from the City Survey Record was produced by the transferees which showed that the property was owned by Hasaram Murijmal and others and the object of the trust mentioned therein was "tikano charitable". In the proceedings before the learned Settlement Commissioner a copy of the extract from the City Survey Record was produced which in the remarks column showed the entries to be disputed. He, therefore, examined the City Surveyor who produced the relevant record. This record consists of a decision dated 6-7-1922 by a IInd Enquiry Officer, Hyderabad which disclosed that the property was a "tikano" (mandir) and another shop C.
8. No. 2119 was appurtaining to this mandir and was dedicated to charitable purposes. According to the evidence of this witness the property stood in the name of "tikano" and the managers' names entered were Hasaram son of Varumal. Kishenchand Rijaram and Pittam Bardas son of Rijaram.
These entries were made by the Enquiry Officer of the Revenue Department on 6-7-1922. As there was a life estate created in favour of a ehella to live and worship for his lifetime. The entry to that effect was removed on his death on 30-6-1938. This witness has explained that the Land Records were maintained at Hyderabad since the year 1922 and prior to that there was no such record maintained. It seems a dispute had arisen between Hasaram and others and one Chottey Lal and Sri P.I over their rights after the death of Ragbhirdas as his chado as they wanted their names to be entered in the City Survey Record in place of their Guru's name. This dispute was decided by the Enquiry Officer by his order dated 28-6-1938 after an enquiry in the course of which evidence was recorded. The City Survey Officer recorded his order dated 30-6-1938 directing that Ragbhirdas's name be removed from column 11 and that the chellas may seek remedy in the civil Court if they so desire. The IInd Enquiry Officer's earlier order dated 6-7-1922 is also on the record which shows that there was a dispute over the management of the property between Maharaj Hasaram Murijamal and others and Bawa Ragbhirdas. In this order the Enquiry Officer recorded a clear finding on examining the parties that admittedly the disputed properties were dedicated to charitable purposes, namely, for a "tikano" and a shop appurtaining thereto. It was accordingly ordered by the Enquiry Officer, that the property be entered as charitable. The learned Single Judge has examined all this record and repelled the contention of the appellant which is now being pressed before us.
Reliance had been placed before the learned Single Judge as before us upon two documents which are the copies of the statements of Maharaj Hasaram and Kisbanchand (Annexures D-1 and E-1) recorded during the enquiry before the Enquiry Officer on 31-5-1938 and 14-6-1938. From these statements it is being contended that the properties had been used for residential purposes as well as for worship and that ownership was clamed. These contentions have been carefully considered by the learned Single Judge and repelled. It has been held that the claim to ownership of the property by Maharaj Hasaram had been rejected by the Enquiry Officer, nonetheless, no further remedy by way of Civil Suit was invoked. In any case this evidence was not produced before the learned Settlement Commissioner and, therefore, the learned Single Judge was not prepared to consider it. We fully agree with the conclusions and observations of the learned Single Judge and find no force in the contention that the only evidence in support of the claim that the property was a religious trust was the entry in the Record-of-Rights. The Enquiry Officer's orders were passed in exercise of statutory jurisdiction upon evidence and it seems that these orders were not challenged. Even in the two statements relied up it seems to be admitted that this property was dedicated to a mundir and was being used for purposes of worship. In absence of any evidence in rebuttal, this in our view was sufficient evidence to establish that the property was dedicated for purposes of a religious trust and was being used as such after the endowment.
6. In the Principles of Hindu Law by D. F. Mulla (12th Edition) at paragraph No. 413 the learned Author observes that where property is devoted absolutely to religious purposes, in other words. Where the dedication is absolute and complete, the possession and management of the property belongs, in the case of a Devas Thanan temple, to the Manager of the temple, called Shebait. Succeeding Shebaits of a temple formed a continuous re--presentation of the property of the idol. Further at paragraph No. 414 it is observed that a Shebait is, by virtue of his office, the administrator of the property attached to the temple of which heis the Shebait. As regards the property of the temple, he is in the position of a trustee. From the order of the learned Settlement Commissioner it appears that in the year 1922 a dispute bad arisen between the chellas of the Guru of this 'mundir, It is observed in the order that the dispute related to the right of management and administration of the "tikano" and the shop attached to it, which was disposed of by the llnd Enquiry Officer, Hyderabad by the order already mentioned above, whereby the name of Maharaj Hasaran and Kishenchand were entered in the Property Register. Clearly, therefore, the. Names of Hasaram and .Others were entered in the record only in that capacity and not as owners, so that even in the year 1922 Hasaram and others did not dispute the character of the property as a religious endowment but merely clamed the right as Shebails.' In the year 1938 once again Hasaram and others raised a dispute with Cheteyram and Sripal who claimed right to succeed to the Office of Shebaits and wanted their names to be entered in the property Register. The contention of Hasaram and others was that the previous Shebait had a life interest and apparently did not dispute the character of the property as a trust. The statement of Hasaram (Annexure D-1) on which reliance is being placed on behalf of the appellant in its opening part clearly states that the property is a mandir which originally belonged to Guru Ragbhir .This being the position there is ample evidence on record that the property was dedicated for a religious purpose and was being actually used for this purpose. In Province of East Pakistan v. Kshiti Dhar Roy(1). it was clearly laid down that under the Hindu Law no particular form or anode of creating a dedication is prescribed, but if such a dedication is not evidenced by a document of dedication it must, be established "by cogent and satisfactory evidence of conduct of the parties and user of the property which show the extinction of the private secular character of the property and its complete dedication to charity." What is necessary to . Be established is that not only was there a clearand -unequivocal intention to dedicate but also that such intention was in fact carried into effect.. This latter can only be proved by the conduct of the dedicator both at the time of and subsequent to the dedication as also by the manner of user of the property after the dedication. In the present case as pointed out all these ingredients for establishing the creation of a religious endowment in respect of the property are established. Mr. Ismail Munshi has, however, relied upon certain reported cases, which in our opinion, are not applicable to the facts of this' case. - The first case in this behalf is Evacuee Property Trust Board v. Lahore improvement Trust (2) in which the claim -that the property in dispute was trust property was rejected on the peculiar facts of the case and the evidence produced in support of the claim which did `not establish that the Sikh Association in whose name the property was` entered in the Assessment Register owned the property or was in adverse possession of it. Besides it was held on facts that there was no evidence to . Prove that a religious institution as such was ever created by theSikh Association and that the property in dispute was attached to it. The next case relied upon is Badruddin v. Murnhi (3) in which a learned Single Judge expressed the opinion that where the house was entered in the name of the Trust it was. Not sufficient proof to hold that the same was dedicated for charitable, religious or educational purposes unless it was further proved that the object of Trust was such. The facts of this case were that the-house was found to be the property belonging to Gurdwara Punjabi Khalsa as it stood in the name ofthe Secretary Santosingh Gurusingh. But the decision in the case turned on the question that. The. Controversy was decided by the Settlement Commissioner in the absence of the Evacuee -Property Trust Board which was a necessary party and was, therefore, remanded for fresh decision, (1),PLD 1964 SC 636 '(2) PLD 19 f9 Lab. 243
(3) PLD 1972 Kar. 101 with the result that no final decision on the question whether the property was trust property, was given. Thus the case has no bearing on the issue before us. Finally reliance was placed upon Abdus Saleem v. Chairman, Evacuee Property Trust Board (1). The point of law on which observations were made in this case followed the decision of the Supreme Court in the case of Province of East Pakistan v. K-hiii Dhar Roy already referred to. The decision in this case also turned on questions of fact which have no bearing on this case. Reliance was also placed on a Single Judge decision reported as District Evacuee Property Committee, Hyderabad v. Bashiruddin (2) Following the view held in the Lahore and Karachi case mentioned above, it was observed that an entry in the Record- of-Rights that the property vested in the trust is not enough for coming to a finding that the property was attached to a trust of the kind contemplated by section 4(3) of the Act and that the object of the trust should be proved to be charitable, religious or educational. The principles laid down may not be open to question but in the facts of the case before us there is no doubt in our mind upon the materials placed on record that the property in dispute was dedicated for purposes of a temple as already discussed above. This is, therefore, not a case merely, proceeding on the basis of an entry in the Record of Rights in the name of a trust. There can be no doubt that under the Hindu Law a property dedicated to a temple is trust property for religious purposes.
7. For the foregoing reasons, there is no merit in this appeal, but before parting with this case we may refer to the final submission of the learned counsel for the appellant in which he referred to the instructions contained in the Office Memo. Of the Chief 'Settlement Commissioner dated 17-6- 1971 whereby it was decided, inter alga; that the transferees to whom evacuee urban trust property was transferred prior to June 1968 would not be disturbed in cases in which such property is being claimed as evacuee trust property. It was submitted that as a result of these instructions the transfer in favour of the appellant is not liable to be cancelled even if the property is proved to be trust property. The question raised in this argument is not germane to the decision of this appeal in so far as the only question before us is whether the property in dispute is a property attached to a trust of the nature mentioned in section 4(3) of the Act. The question whether the transfer in favour of the appellant should be cancelled is not a matter within our com--petence to decide. We should, therefore, leave this matter open for the relevant Authorities including the Board to consider in the light of the instructions relied upon if applicable.
8. With the aforesaid observations, we dismiss this appeal with costs.
(1) PLD 1975 Lab. 960.(2) PLD 1973 Notes 21 at p. 32