' IMAM ALI G. KAZI, J.--The Chairman, Evacuee Trust Property Board by his order, dated 5-2-1980 declared -the properties bearing City Survey No,B/865 and Custodian No,III-A-134 situated in Ward 'B' Tando Adam, District Sanghar, Sindh to be an evacuee trust property and although it was transferred to the petitioner in the year 1965 its transfer could not be validated in terms of provision made in section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 as the transfer in question was neither bona fide nor made in satisfaction of a claim. The petitioner being aggrieved by this order, has filed the present petition under Article 199 of the Constitution of Islamic Republic of Pakistan.
2. The facts leading to the filing of the present petition are that the house in question had two portions, one was in possession of the petitioner while the other was in possession of one Abdul Razzak. The house was put to open public auction in the year 1965 when no body offered any bid.
Subsequently, a portion of it was ordered to be transferred to the petitioner by way of negotiations by the Settlement Authorities. The price was paid by the petitioner through a compensation book and ultimately Permanent Transfer Deed was issued to him on 22-5-1965. The second portion was similarly transferred to one Abdul Razzak as stated hereinabove and Permanent Transfer Deed was issued to him on the same date. Subsequently, Abdul Razzak by registered deed transferred his portion to the petitioner on 13-4-1970. It appears that Evacuee Trust Property Board, Lahore moved an application before the Chairman, Evacuee Trust Properties Board, Government of Pakistan, Latrore, seeking,cancellation of the property in question. The Chairman after hearing the petitioner passed the order impugned in his petition.
3. It seems that the Chairman, Evacuee Trust Property Board was impressed by an entry recorded in the Permanent Transfer Deed itself to show that the property belonged to one "Bawa Harigir Chella, of Naraingir". According to him as the property in question was inherited by the Chella from Guru, the property must be a trust property and could not be available for transfer to any one.
4. Mr. Farman Ali Hashmi, the Advocate for the petitioner has mainly contended that such a finding that the property in question is a trust property is based on no evidence and conclusions reached on the basis of mere surmises. According to him, there has to be a cogent and reliable evidence to prove that the property is attached to a religious trust, which is absent in this case. He has relied on the case reported in PLD 1975 Lah.
960.
5. From both the names of Guru and Chella, it appears that they belonged to a "Giri-sect" of Mohants. The Mohants under the Hindu Law are the heads of monastries established for the purpose of imparting religious education to students who actually are required to take abode in the monastries so established. The Mohants generally are required to lead a life of celibacy, succession to such office under the Hindu Law is regulated by custom and practice. In majority of the cases the prevailing custom has been that a Mohant either appoints his successor from among the Chellas during his lifetime or nominates one through a Will. Mohants under the Hindu Law are also capable of owning private/personal property as well. The entry as recorded in the official registers in this case merely indicates that Bawa Harigir Chella of Bawa Naraingir was appointe,d as successor of his Guru by means of a Will. It merely means that Bawa Harigir was to succeed Naraingir both to the office (Mohant) and properties of the said Guru. Such an entry could not have enabled the Chairman, Evacuee Trust Property Board in absence of positive evidence to come to the conclusion that the property in question was in fact evacuee trust property so as to assume and exercise jurisdiction under section 10 of the Evacuee Trust Properties (Management and Disposal) Act, 1975.
6. We had, therefore, by our short order passed on 28-3-1989, declared the order impugned in this petition to have been passed without lawful authority and to be of no legal effect, while above are the reasons for the passing of that order.