' ARSHAD SIRAJ MEMON, J.---Through this petition, the petitioner has assailed order dated 12-3- 2004 passed by the Secretary, Ministry of Minorities, Culture, Sports, Tourism and Youth Affairs, in Case No, 3-141/2002-REV (respondent No, 3) . The said order was passed in revision petition filed by the petitioner against the order passed by the respondent No,2, Chairman, Evacuee Property Board; Government of Pakistan vide order dated 26-5-2000, through which permanent transfer deed in respect of property bearing city Survey No,NT.1/28-29, Naiper Quarters, Karachi, was not validated being after the target date and payment made thereof was made in cash instead of the compensation book.
2. The brief and necessary facts are that the father of the petitioner migrated from India to Karachi in 1947 as a displaced person. The then Administration at Karachi accommodated the petitioner's father and his family in portion of building bearing No, NP. 1/28-29 in Mithadar, Karachi.
Subsequently the officials of the Custodian Department for Evacuee Property took over the management of the case property for the reason that its owner had migrated from Pakistan to India and thus property become an evacuee property and they assigned their own numbers to the portions of the property which had been occupied by different persons and started recovering rent from them. The petitioner has claimed that the subject portion of the property was in occupation of petitioner's father and is now in his possession. The petitioner's late father had left the property in Delhi, therefore his claim for the abandoned property was verified by the Claim Commissioner on 5-10-1957 and at that material time Settlement Authorities issued compensation book to petitioner's father showing the amount of compensation available therein. It has been pleaded that late father of the petitioner paid rent of the subject portion of the case property from his Compensation Book. In 1958, the Government of Pakistan promulgated an Act known as Displaced Persons Compensation and Rehabilitation) Act, 1958. Under the provision of section 3(1) of the said Act the Central Government of Pakistan at that material time-acquired all the evacuee properties at Karachi by issuing notification dated 30-11-1959. However, as per provision of section 4(2) of the said Act, the immovable A evacuee properties, which were attached to any charitable, religious, or educational trust or institution or any other evacuee property as may be specified in this behalf by Central Government by notification in the official Gazette were excluded. On 7-6-1960 the Chief Settlement Commissioner of Pakistan enforced a scheme for the management and disposal of the property attached to charitable, educational trust or institution and Administrators were appointed for the administration of these properties at District level and authorized them to recover the trust properties and take over their control. It has been stated in the petition that the said trust authorities did not take over the control and management or possession of the disputed property and the Settlement Authorities at Karachi continued to manage the same. It has been further stated that on 19-5-1959. Chief Settlement Commissioner of Pakistan enforced the Settlement Scheme No, 1 and invited applications from those persons who were occupying immovable evacuee property for its transfer through relevant application. It has been stated that the petitioner's late father submitted such an application for the transfer of the disputed property on the basis of his possession but before the transfer could be effected and finalized he expired B and the relevant papers of the case were lost and could not be recovered by the petitioner.
3. It has been further stated that Settlement Scheme No, VIII was enforced under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the petitioner applied for transfer of the disputed property to him on the basis of his possession as the same had not been disposed of to anybody. It has been stated that before such application could be finalized one late Muhammad Farooq, who had according to the petitioner, was accommodated by late father of the petitioner to use passage of the disputed property, opposed its transfer and thereafter litigation started due to which finalization of the transfer of the property on the application of the petitioner was delayed and prolonged. Such litigation culminated by the decision of the Deputy Settlement Commissioner, Karachi, vide order dated 22-10-1968 in which it was held that the disputed property was a one unit and the Deputy Settlement Commissioner transferred the same to the present petitioner under Scheme No, VIII on his application NCH Form No,Kyc-F-646, dated 25-10-1966. It has been further stated that on the basis of the said order the petitioner was entitled for transfer of the subject portion of the disputed property and in pursuance to such order C the petitioner paid price of the portion on 17-6-1968, which was much before 30-6-1968, the effective date mentioned in section 10(b) of the Evacuee Trust Property Act XIII of 1975 for the validation of the transfers of the evacuee trust properties. It has been claimed by the petitioner that factum of payment has been mentioned in PTD issued to the petitioner. It has come on record that the order passed in favour of the petitioner by the Deputy Settlement Commissioner dated 25-5-1968 (prior to target) was challenged by late Muhammad Farooq in revision before the Additional Settlement Commissioner and ad interim stay was granted and finally by an order dated 18-7-1968 the case was remanded to the Deputy Settlement Commissioner for passing a fresh order on merits. On remand the site was inspected and in the remand order dated 22-10-1968 it was held that the petitioner alone was entitled for the transfer of the disputed property. According to the learned counsel for the petitioner, the said order attained finality as late Muhammad Farooq did not contest the case further and handed over the possession of the passage he was claiming, to the petitioner. It is further observed from the record that orders for transfer of property was issued by Settlement Authorities on 14-6-1969 beyond the terminus date i.e. 30th June, 1968. However, it has been claimed that payment was made before the target date on 17-6-1968 as per appended annexure D/1 and D/2 respectively. The Annexure 'E' shows that said premises was transferred in favour of petitioner for Rs, 4,680 by Settlement Department vide PTO No,Kyc/13574, dated 14-6-2009.
4. It has been argued that after such entry, the petitioner enjoyed peaceful and un-interfered possession from the respondents. On the basis of above narration of facts, the petitioner states that the respondent did not take any action for taking over the control of the disputed property of evacuee trust property from the date of issuance of P.T.O. i.e. 14-6-1969. It has been stated that the petitioner submitted an application under sections 8 and 10 of Evacuee Trust Property (Management and Disposal) Act XIII of 1975 in the year 1985 before the respondent No, 2 i.e. Chairman, Evacuee Trust Property Board, for declaration that the disputed property be declared as an evacuee property and the P.T.Os. Issued to the other occupants be cancelled. On the said application, the respondent No, 2 summoned the settlement record and the Settlement Inspector produced the CDC Extracts of the disputed property along with other documents such as P.T.Os. In the said CDC Extract it transpired that the property belongs to Shivalo (Charitable) and in the column of owner's name such entry of Shivalo (Charitable) was mentioned and further names of two persons were given one as Moulomal Shivaram and the other Hemandas Minor Shivaram. It also transpired that in the column for nature and origin of title in the disputed property it was mentioned that 65.5 sq. Yards was purchased by sale-deed dated 19-4-1927 at consideration of Rs, 4,355, Deed No, 253 and the remaining portion was purchased by Sale-Deed dated 19-4-1927 at Rs,7,638, Deed No, 255.
5. On coming to the knowledge of such entry and finding, the petitioner preferred a Constitutional petition before this Court in C.P.No, D-448 of 1987 and this Court vide judgment dated 9-8-1993 was pleased to allow the petition and set aside the order dated 31-10-1985 and remanded the case for a fresh decision on merits after hearing the parties.
6. After remand, the parties were summoned by the respondent No,2 and the matter was adjudicated. The petitioner appeared before the respondent No, 2 and filed statement refuting the contention of the Administrator, Evacuee Trust Property Board. On such occasion the arguments were heard by the respondent No, 2 and record of Settlement Department produced by the Inspector was perused and arguments of the petitioner were also heard. According to the said order certain documents which were marked as Exh.P-1 to Exh. P-19 in respect of the disputed property in question belonging to Shivalo Charitable were confronted to the respondents (the petitioner) and according to the respondent No, 2 the petitioner failed to rebut such documentary evidence as such the respondent No 2 held that the disputed' property as evacuee trust property and directions were given for publication of the notification under the law. The petitioner on various grounds challenged the impugned order in revision under the provision of section 17 of Evacuee Trust Property (Management and Disposal) Act XIII of 1975 before the respondent No,
3. The petitioner, inter alia, raised several points before the respondents 2 and 3 which are as under:-- "(a) That there is no other record except the extract of CDC in respect of Plot No, NP 1/28 before the learned respondents Nos.2 and 3 to hold the case property as an evacuee trust property except an entry of Shivalo therein but at the same time the names of two owners also exist in the column of ownership. Hence the case property would either be of the Hindu owners or of Shivalo because there cannot be two different owners of the same property at a time. Furthermore a Shivalo cannot own a property unless the previous owner dedicates the property to the Shivalo by a Trust deed and he being the author of the trust should give the purpose of the trust mention the names of the trustees and its beneficiaries in that deed as required under sections 5 and 6 of the Trust Act of Pakistan. Even otherwise under section 7 the Trust Act a trust deed can only be executed by a person who is competent to contract that is to say a minor owner cannot do that. Additionally in the Extract of the property No, NP. 1/29 there is no mention of Shivalo at all when the case property is built on the two plots namely NP. 1/28-29.
(b) That the Government of Pakistan had enforced a scheme for the management and disposal of the trust properties on 7th June, 1160 whereby the Administrators working under the scheme were duly authorized to take over the control and management of the evacuee trust properties but the learned respondent No,1 did nothing in this regard for about 25 years and the case property remained either in the control and management of the Custodian Evacuee Property at Karachi or the officials of Settlement Department.
(c) That at the time of issuance of notification dated 30-11-1959 under section 4(2) of DP (Comp. & Reh.) Act, 1958 by the Central Government of Pakistan all the evacuee properties at Karachi were acquired free from all encumbrances and on the acquisition of such properties the Trust Authorities lost their domain on these properties even if it was declared to be a trust property in 1958 by the learned respondent No, 2.
(d) That in the absence of any documentary proof on record merely an entry in the Revenue Record or in the property record in the name of Shivalo along with the owners cannot be held to be an authentic entry and is liable be ignored in view of the decision of the Hon'ble Supreme Court reported in 1990 SCM R 20.
(e) That if for any reason the learned respondent No, 2 was of the view that since there exists an entry of Shivalo in the CDC Extract in respect of Plot No, NP 1/28, Karachi the case property is an evacuee trust property, he should have validated the PTD issued to the petitioner on the ground that the transfer of the subject portion of the case property had been completed on 17-6-1968 because on this date the price had been paid vide decisions reported in. 25-5-1968.
(f) That the then Chief Settlement Commissioner on behalf of the Government of Pakistan issued a notification dated 17-6-1971 informing the authorities that it had been decided that the transferees to whom the urban evacuee trust properties have been transferred upto June, 1968 and they had paid the price or the amount of claim towards the properties should not be disturbed and the settlement organization would pay the price to the Evacuee Trust Board. A copy of the notification is produced and marked as F12."
7. Learned counsel for the petitioner has argued that firstly, the respondent No, 3, while deciding the revision petition has not assigned any reason in upholding the impugned order passed by the respondent No, 2 and such order is violative of the principle laid down by the superior Courts that order should assign the reason and must be a speaking order. The second argument of the learned counsel is that the respondents Nos. 2 and 3 have failed to consider the entry in the name of Shivalo (Charitable) and have also failed to examine its authenticity as the respondent No, 1 has not produced any evidence be that document or oral to establish that the said Shivalo/Charitable was based on any documentary evidence. Thirdly, he argued that even if the disputed property is held to be evacuee trust property on the basis of the entry in CDC Extract, the respondents Nos. 2 and 3 ought to have validly transferred the property under the provision of section 10 of the Evacuee Trust Property Act of 1915 for the reason that the transaction was completed on 17-6-1968 when the petitioner had paid the price of the disputed property, which, was prior to the cut-off date. In support of his contentions, the learned counsel for the petitioner has relied upon the following cases (1) 1990 SCM R 20, (2) 1999 SCM R 2927, (3) 1994 SCM R 1908, (4) 1999 M LD 2068. On the basis of the above judgments, the learned counsel submitted that the impugned order be held to be without lawful authority and of no legal effect and the petition as prayed be granted in his favour
8. On the other hand, learned counsel for the respondents Mr. Ashiq Ali Anwar Rana has opposed the contentions of the learned counsel for the petitioner and submitted that the respondents Nos. 2 and 3 have validly taken the action which is supported by the provisions of sections 8 and 10 of the Evacuee Trust Act, 1975 and each and every aspect of the case was examined, the entries in the CDC Extract were duly confronted to the petitioner and that the decisions relied upon by the learned counsel for the petitioner are distinguishable. In support of his contention relied upon 1991 SCM R 2206, 2005 SCMR 207 and 2004 MLD (Karachi) 2033.
9. So far, as the judgments relied upon by the petitioner are concerned, we have examined the factual position of the petition and are of the firm view that the decisions cited at bar are not only distinguishable but revolves on their own facts. The distinguished features of the judgments will be discussed in the succeeding paragraph. In the present case, much emphasis have been made on the proposition that since the petitioner had paid the price of the disputed property before the cut- off date the respondents could not have invalidated the entry. In our view looking to the facts and circumstances of the present case, the above argument would be of a secondary nature.
10. In the present case the respondents have taken the action when the petitioner applied for its transfer of the disputed property in his favour and while examining official record it came to the knowledge of the respondents that the disputed property belonged to Shivalo (Charitable), which was purchased way back in 1927 by two individuals whose names are appearing in the extract. The petitioner during the proceedings conducted under sections 8 and 10 of Evacuee Trust Property Management and Disposal) Act, XIII of 1975 before the respondent No 2 in which the petitioner admittedly participated (which fact has not been denied by the learned counsel appearing for the petitioner) in such proceedings certain documents marked as Exh.P-1 to Exh.P-19 allegedly pertaining to the property in dispute belonging to Shivalo (Charitable) were confronted. During the hearing of this petition, the counsel for the petitioner was specifically asked whether such documents have been appended with the present petition as apparently no such documents were attached with the petition. No satisfactory reply was given by the learned counsel as to why such documents were not produced or attached with the present petition. In absence of such documents which according to respondent No, 2 directly relate to the disputed property vis-a-vis its belonging to a Shivalo (Charitable). It is very difficult for us to take a different view as taken by the respondent No, 2 for the reason that had the petitioner annexed such documents and had argued that the respondent No, 2 had misread the evidence, we could have examined such a plea in our appellate jurisdiction. However, since very important documentary evidence is not before us, we can neither comment about the genuineness or otherwise of such documents or its nature nor we can comment or observe that such documents have been misread by the respondent No,
2. In such a situation, the entire edifice of the arguments of the learned counsel falls to the ground.
11. We now take-up the judgments relied upon by the learned counsel for the petitioner. In the case of District Evacuee Trust Committee, Hyderabad v. Ismail and others reported in 1990 SCM R 20 their lordships have categorically observed that no doubt it is true that initial presumption of correctness is to be drawn in favour of property record prepared by public officials in the discharge of then duties but then this rule does not apply to record where entries are self-contradictory, in the case before their lordships there were contradictory entries in Property Registration Cards. It was, therefore, observed that since the property belongs to one Tikno the origin of title could not have been inherent. It was further observed that no effort was made by the District Trust Committee Board to reconcile seemingly inconsistent entries. Firstly this judgment revolves around in its own peculiar facts and is distinguishable as lordships found self-contradiction in the record. Secondly in the present case, the CDC record extract showed entry in the name of Shivalo (Charitable) and the names of previous owners were mentioned while conducting inquiry and proceedings certain documents as observed above were confronted to the present appellant which were not rebutted.
As such this judgment is of no help to the appellant.
' Mst. Bani v. Government of Pakistan reported in 1999 SCM R 2927 in that case the dispute was raised by the legal heirs of the persons who purchased the property through auction, who were dispossessed due to non-payment of rent. Subsequently the authorities were of the view of that the legal heirs of the person had to pay according to market value. The only question was that whether the auction purchaser had to pay present market value when the auction purchaser had build super structure on the property on his own cost. It was observed that it was unfair on the part of Evacuee Board to receive market price and thus such action was declared illegal. The facts are entirely different to the present case as such the judgment relied upon by learned counsel is not relevant.
' Government of Pakistan v. Nizamuddin, reported in 1994 SCM R 1908 in that case determination of nature of property by the Chairman Evacuee Trust Board was made in the absence of trust deed in respect of property and no evidence was led to show that property in question was attached to any religious charitable or educational trust. An extract of survey register also did not indicate whether property in question was religious charitable or educational trust. As such the entire case was decided on the basis that there is no evidence whatsoever. However, in the present case the respondent No, 2 had placed CDC extract where there was mentioned of Shivalo (Charitable) and further the evidence confronted during the proceedings but same was not rebutted by the appellant and as observed in this judgment same was not placed before us for determining the veracity of such documents, as such no reliance can be placed in case, therefore, distinguishable.
' Muhammad Yaqoob v. Additional Secretary reported in 1999 M LD 2068 in that case the learned Single Judge of the Lahore High Court remanded matter to examine the entire relevant record in relation to the creation of the trust as no exercise was made to find out the nature of the property.
As stated above in the present case such exercise was made and certain documents were confronted by the respondent No, 2 to the appellant which remained un-rebutted, as such the cited judgment is of no help to the appellant.
12. It is difficult to subscribe to the arguments of the learned counsel about non-genuineness of the entry in CDC Extract as very strong presumption of correctness is always attached to the official documents unless and until it is demonstrated that the same are unreliable by presenting the sufficient evidence to the contrary. In similar cases it has been held that there is no reason to dispute the presumption of correctness which attaches to the official record after it remains unrebutted should not be given effect in deciding the nature of the property viz. Evacuee property, case of District Evacuee Trust Committee v. Muhammad Umer (1990 SCM R 25) can be referred. In another case almost identical issue was involved in the case of Muhammad Bashir v. Islamic Republic of Pakistan (2004 M LD 2033), in which one of us his lordship namely, Khilji Arif Hussain, J.
While deciding the petition has observed as under:- "We have taken into consideration respective arguments advanced by the learned Advocates and also gone through the record. It appears from the record-of-rights maintained by the City Survey Karachi that "Punchayat Punjabi Daras of Karachi" was shown as owner of the property. The contention of the learned Advocate for the respondent that from perusal of Gazette Notification, record of CDC, KMC, it is established that the owner of the property in question, was Panchayat Punjabi Daras of Karachi and it has been recorded in the record that the said property is "rent free" property clearly prove the nature of the Trust have force, that property in question was owned by the Charitable Trust prior to the partition.
' In the case of Government of Pakistan v. Nizamuddin through Legal Heirs and other (1994 SCM R 1908) (supra), in the context of the facts of the case Hon'ble Supreme Court held that "in the absence of any evidence 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, the order passed by the Chairman of the Board holding the property as an evacuee trust property was an arbitrary order based on no evidence". In the case of Divisional, Evacuee Trust Committee, Karachi v. Abdullah and 2 others (1970 SCM R 503 (supra)) the Hon'ble Supreme Court held that merely because in the sale-deed one property in favour of Panchayat acquired for the maintenance of Hindu widow does not by itself prove that the Panchayat was a religions or charitable institution or that property acquired by the Punchayat was trust property. The Hon'ble Court further held that, to find out as to whether the property is trust property detailed scrutiny of the Revenue Record as on 14th August, 1947 is necessary. In the case of Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others, (PLD 1991 SC 586 (supra)) Hon'ble Supreme Court held that if sufficient in prima facie evidence was adduced for showing that the property in question was attached to a religious or charitable institution and said evidence was not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property was attached to a religious or charitable trust was not essential and the matter could he decided on the rule of preponderance of evidence. In the case of Qazi Akbar Jan and others (supra) on the basis of entry in the record showing the owner of the property as "URDU" Supreme Court upheld the finding of the High Court declaring that the property as was attached to a religious trust.
In the instant case although trust deed was not produced but from the finding of facts recorded by respondents Nos. 3 and 4 as well as from the record-of-right it is established that the property was owned by Panchayat Punjabi Daras of Karachi and the same was treated as "rent free property" prima facie established that the property in question was belonged to a charitable trust. The petitioner failed to point out from the record any evidence to dislodge the finding of fact recorded by respondents Nos.3 and 4. For the foregoing reasons the petition is dismissed in limine."
13. The ratio of judgment in the above case, squarely applies to the present case, as during the proceedings conducted by respondent No,2, the petitioner was unable to rebut the evidence and secondly in this petition, - such evidence has not been placed before us to examine the veracity of such documents. We reiterate that had the appellant placed before us the documents confronted to him by the respondent No, 2, we could have made an attempt to examine and ascertain the status of the disputed property, but unfortunately nothing has been brought on record nor placed during the hearing of the appeal, we cannot help the appellant on this score. Question whether or not property is an evacuee trust property is a question of fact and can be proved like any other fact in issue, and finding that property is not a trust property has remained un-shattered and un- rebutted. As such it cannot be argued that the matter has not been decided properly by respondents.
14. In view of the above position, this Constitutional petition is dismissed, along with listed application if any.