FAZAL SUBHAN, J. Through this single judgment, we propose to decide the instant as well as the connected writ petition No.1664- P/2022 titled "Ch. Muhammad Aslam and others vs. Federation of Pakistan through Chairman Federal Land Commission, Islamabad and others", as identical question of law and facts are involved therein.
W.P No.1663-P/2022
2. It is claimed in the writ petition that Mst. Sardara Bibi widow of Barkat Ali, a displaced person, abandoned 523 Acre land in Azad Jammu Kashmir and preferred her claim as a displaced person and after due process of law i.e. verification of her claim, she was declared entitled to 28800 Produce Index Units (PIU) and was accordingly issued RL-II No.42, dated 20.05.1959 by the competent authority whereby she was allotted 4698 Kanals 16 Marlas land (hereinafter called disputed property) by Central Government Pool in Mauza Peer Sabaq, Tehsil Nowshera (now District Nowshera).On the demise of Mst. Sardara Bibi on 15.06.1977, petitioners being minors could not approach the concerned authorities for attestation of inheritance mutation, however, after attaining majority, they approached the relevant authorities for attestation of inheritance mutation, but the same was not entertained. Having no other option she filed writ petition No.2046/2010 which was dismissed with the following observations:- "The petitioners may, however, approach the respondents for redressal of their grievance, which is to be decided in accordance with law. The petitioners may, however, in case their grievances are not decided in accord with law, if so advised, approach this court.
With these observations, this writ petition is dismissed in limine."
Accordingly, the petitioners submitted a representation dated 15.03.2021, however, on the report of Patwari Halqa, her representation was rejected on the basis of office letter No.ETP/PSH/16, dated 02.03.2010, issued by the Administrator Evacuee Trust Property Board, Peshawar. Against the said order another writ petition No.2298-P/2012 was filed which was disposed of in the following terms:- "Perusal of the record reveals that the petitioners have submitted an application dated: 15.03.2011 to respondent No.5 and that application was allegedly considered and report of Patwari was solicited where after respondent No.6 was going to enter mutation in the names of the petitioners but the impugned letter dated 02.03.2010 became hurdle in the way of respondent No.6 and as such mutation could not be entered. Since the Chairman Evacuee Trust Property Board in its order dated 15.03.2013 passed in Case No.PB/NSR/15/2010 Mumtaz Bibi vs Deputy Settlement Commissioner / Collector, Peshawar and others has declared that the impugned office letter dated: 02.03.2010 has wrongly been written, the application of the petitioner dated 15.03.2011 shall be deemed pending before respondent No.5 who is directed to consider and decide application of the petitioners strictly in according with law.
With the above observation, this petition is disposed of:"
The respondent department preferred C.A Nos.744 and 745 of 2014 before the august Supreme Court of Pakistan which were allowed vide Judgment dated 21.03.2017 with the following observation/direction:- "We consider that the real dispute between the parties is whether the property is Evacuee Trust Property or otherwise and this question can only be resolved by the Chairman of the Board Let the Respondents move an application to that effect to the Chairman of the Board within 15 days from today with proof of ownership vide RL-II and the Chairman, after making due inquiry, shall determine the status of the property within a period of three months from the receipt of such application.
In the light of the above, these appeals are allowed and the impugned judgment(s) is set aside."
In compliance with the said observation and direction, the petitioners approached the Chairman Evacuee Trust Property Board, which was contested by the respondents department and vide order dated 08.03.2022 their representation was dismissed. Operative part of the order is reproduced herein below:- "It is concluded that the case property is not a simple evacuee property. Accordingly, the same is declared to be an Evacuee Trust Property. The RL-II No.42, dated 20.05.1959 is therefore declared illegal and void having no legal effect. This reference is dismissed in the above terms. A Notification to this effect also be got published in the official gazette of Pakistan."
Aggrieved by the said order petitioners have filed this writ petition on the grounds, inter alia, i. that there is no entry in the relevant record that the disputed property is an Evacuee Trust Property or it is owned by the Evacuee Trust Property Board but this aspect has not been considered in the impugned judgment/order. ii. that the impugned judgment/order is against the law, facts and material available on record. iii. that the said judgment/order suffers from misreading and non- reading of evidence. iv. that neither the issues were framed nor evidence available on file was properly appreciated. v. that the judgment dated 29.11.1966 of the august Supreme Court of Pakistan was misapplied by the Chairman of the Board. vi. that section 7 of the Evacuee Trust Board (Management & Disposal) Act, 1975 deals with validation of declaration of Evacuee Trust Property or otherwise while section 10 thereof deals with validation of certain transfers regarding immovable-Evacuee Trust Property. vii. that the petitioners have not been treated in accordance with law enshrined in the Constitution. viii. that the respondent No.2 was bound to implement the judgment dated 21.03.2017 of the Hon'ble Supreme Court of Pakistan. Consequently, It was prayed that on acceptance of this writ petition the impugned order dated 08.03.2022 of the Chairman Evacuee Trust Property Board/respondent No.2 alongwith subsequent proceedings may be set aside and appropriate writ may be issued to the concerned quarters to enter inheritance mutation(s) in the name of. petitioners on the basis of QPR-V dated 16.12.1958 and subsequent RL-II No.42, dated 20.05.1959 and the petitioners may be declared lawful/rightful owners of the property mentioned therein.
W.P No.1664-P/2022.
3. It is contended in the writ petition that Chaudhry Allah Ditta son of Mian Noor Din, a displaced person, abandoned 638 Acre land in Azad Jammu Kashmir and preferred his claim as a displaced person and after due process of law i.e. verification of his claim, he was declared entitled to 28500 Produce Index Units (PIU). He was accordingly issued RL-II No.41, dated 15.04.1959 by the competent authority whereby he was allotted 5588 Kanals 13 Marlas land from Central Government Pool in Mauza Peer Sabaq, Tehsil Nowshera (now District Nowshera).On the demise of Chaudhry Allah Ditta on 26.08.2009, petitioners being legal heirs approached the relevant authorities for attestation of inheritance mutation but the same was not entertained. Having no other option they filed writ petition No.2084/2010 which was dismissed. Their representation, earlier writ petition No.2297- P/2012, CA Nos.744 and 745 of 2014 before the august Supreme Court of Pakistan and representation before the Chairman Evacuee Trust Property Board were decided with the same outcome as in the case of writ petition No.1663-P/2022, hence they have filed this writ petition on the identical grounds.
4. With the above detailed background of the case, we have heard arguments of learned counsel for the parties.
5. The core question involved in the case is the status of the property as to whether it is an evacuee trust property or otherwise. The august Supreme Court of Pakistan while allowing CA Nos.744 and 745 of 2014, directed the petitioners to file an application before the Chairman of the Board (Chairman Evacuee Trust Property Board) for determination of the status of the property. Such determination was linked with an enquiry on the basis of proof of ownership vide. RL-II. The proceedings before the Chairman Board were held and parties produced evidence and relevant revenue record, Jamabandi for the years 1959-60 to 2011-12, Ex.PW-1 to Ex.PW-12 brought by patwari halqa, while Assistant Administrator Evacuee Trust Property also produced relevant revenue record from 1947-48 to 2011-12 in respect of the disputed property as mark-A to mark-C. It transpires that in the record produced by both these witnesses, the property is recorded in the name of "Committee Samadh Akali Phola Singh in the column of ownership, and on the basis of such entries in the revenue record the Chairman of the Board arrived on conclusion that the disputed property is an evacuee .trust property and for arriving to this conclusion reliance was placed on the case law reported as District Evacuee Trust Committee vs. Mushraf Khan and 3 others (1989 SCMR 1636). We have found that the entry in the column of ownership of the disputed property is of much significance. The word "Samadhi". in Hinduism and Buddhism means "the state of intense concentration achieved through mediation". The entry in the column of ownership shows a recognized charitable and religious purpose for which the disputed property was retained and to dislodge the presumption that the disputed property is not a property left for charitable purpose, a very strong and unrebuttable proof/evidence was to be produced. In support of this view of the matter reliance can safely be placed on the above referred Judgment of the august Supreme Court of Pakistan wherein it was held that:- "Therefore, applying the rule of preponderance of evidence the issue had to be decided in favour of the appellant that the property was attached to a religious and charitable trust. SO far its the sufficiency of evidence is concerned, we have already expressed our view in similar matter in Civil Appeal No.K/41/1973 Evacuee Trust Property Board v. Rahim Khan and 3 others that entries in revenue record with regard to ownership of properties are presumptive evidence of title sufficient to sustain it finding consistent with such entries unless the contrary is proved.
Therefore, in an inquiry under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, the production of entries in the record of rights maintained by the revenue authorities would be sufficient to shift the onus of proving the contrary to the party which dispute its correctness. In the peculiar nature of proceedings held for determination of the question whether a given evacuee property was or was not attached to charitable trust, the enteric in the record of rights maintained by the Revenue Department Constitute an important source of information which enjoy an initial presumption of truthfulness attached to it. For this reason we are inclined to the view that the reliance placed by the learned Single Judge on AIR 1926 PC 100 Thakur 1 Nirman Singh and others v. Thakur Lal Rudra Pariah Narain Singh and others was inapt and irrelevant. The question of law decided in the reported case was totally different wising in the context of facts also un-similar to the facts of the present case. We are, therefore, unable to subscribe to the view taken by the learned Single Judge that the evidence of extract of revenue record of rights produced by the appellant was insufficient to sustain its claim."
Besides, this entry in the revenue record, the Chairman of the Board also concluded that the property is in occupation of tenants of the Evacuee Trust Property Board and petitioners are out of possession.
6. The respondents during the proceedings before all the above referred forums had taken the stance that the RL-II issued to the petitioners predecessors are forged and bogus due to lack of any supporting documents and in view thereof, the august Supreme Court of Pakistan while allowing the Civil Appeals No.744 and 745 of 2014 has specifically directed the petitioners to file application before the Chairman of the Board within 15 days with proof of ownership vide RL-II, however, during the proceedings before the Chairman of the Board no proof of their abandonment of lands in Azad Jammu and Kashimir and relevant documents in respect of claim or its verification were produced thus the relevant documentary proof of ownership was not brought before the Chairman of the Board. It is also pertinent to mention that as per revenue record, the property is in possession of the tenants and under the management of Evacuee Trust Property Board since 1947 onward. No other record was produced to prove that the suit property was available in the compensation pool to be allotted to the petitioners. Thus on the basis of the material available on record, the Chairman of the Board has declared the suit property to be evacuee trust property attached to a religious and charitable purpose, we do not find any illegality or Jurisdictional defect or misreading or non-reading of the relevant record in the impugned judgment, hence having no force, this petition and the connected writ petition No.1664-P/2022 are dismissed.