SHAFIUR RAHMAN, J.--Leave to appeal was granted to the Evacuee Trust Property Board, Lahore to examine whether the judgment of the Lahore High Court dated 19-7-1974 under section 4 (4) of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (hereinafter referred to as the Act) reversing that of the Settlement Commissioner dated 13-6-1968, fully takes into account the earlier litigation in respect of the properties concluded by R.FA. No,300 of 1943, and is in accord with law on the subject.
2. Twenty one properties in the nature of shops, houses and land in Lahore, occupied by more than 150 persons, displaced and locals, had been the subject matter of proceedings under section 4 of the Act. An application was filed by the occupants of these properties claiming a declaration from the Settlement Commissioner under section 4, subsection (3) of the Act that the properties in their occupation were evacuee properties and hence transferable under the Act and not evacuee trust properties to be controlled and managed by the appellant. The Settlement Commissioner examined the entire evidence produced before him and recorded the following conclusions:- "Both the parties have produced various documents in the nature of certified copies of assessment of the Lahore Municipal Corporation and it is evident from Exs. R/1 to R/37 of which Exs. R/1 to R/5 relate to the yearing 1913, 1914, 1925, 1941, 1942, 1953 and 1954 establishing beyond any shadow of doubt that the properties in dispute were the properties of 'Sitla Mandir' estate Keeping in view the evidence of the parties and the asrguments of the counsel for the parties I am clearly of the opinion that the petitioners have miserably failed to prove their case. The properties in dispute have all along been the Trust properties and their income also put to the same use. As a result of my above findings the petition fails and is accordingly dismissed."
3. An appeal was taken to the High Court under section 4, subsection (4) of the Act and the learned Judge reversed the judgment of the Settlement Commissioner and held the properties to he evacuee in nature and not evacuee trust properties. The observations made for arriving at the conclusion are reproduced hereunder:- "According to Hindu law in order to constitute a public trust the author or authors of the same must be ascertained and the intention to create a trust must be indicated by words or acts with reasonable certainty. Moreover, the purpose of trust, the trust property and the beneficiaries must be indicated so as to enable the Court to administer the trust, if required. Reliance in this respect can be placed upon Pandit Prema Nand v. Nihal Chand and another (AIR 1938 Privy Council 195). It was observed therein that assuming, however, that the property acquired by a Mahant is to be treated as a religious property, the question arises whether it was dedicated for the use or benefit of the public. In the case of public trust the beneficiaries are either the public at large or a considerable portion of it, answering a particular description. It was further held that there was no documentary or oral evidence to show that the property was expressly dedicated for the use or the benefit of the public. The land on which the Shrine in that case was built was State land before it was granted to the persons, who applied for the same. The grant of the land was recommended by the Municipal Committee and as the facts of the case show, the Deputy Commissioner remitted the share of the price of the land, which was due to the Government, in the interest of the city."
4. In spite of holding on the strength of decision in the case of Province of East Pakistan v. Kshiti Dhar Roy and others (PLD 1964 SC 636) that under the Hindu Law no particular form or mode to create a dedication is prescribed, the learned Judge went on to hold as hereunder:- "In the present case, as shown above on the basis of various documents produced by the parties, Kirpal Gir, the ancestor of Baldev Gir, was shown to be the exclusive owner of the property in 1856 vide Ex. P.B. Thereafter his successors-in-interest were also shown to be owners of the property in question and the same was not shown in the ownership of Sitla Mandir. It has not been shown on record that Kirpal Gir or his successors-in-interest ever completely divested themselves of the ownership rights in the property. Mere entry with regard to Muafi or exemption of revenue or other taxes cannot prove the title of the temple with regard to ownership of the property. If some income of the property was spent on the maintenance of the temple, that also does not prove that the property was trust property, unless the ingredients with regard to creation of trust, as discussed above, are established on record. The above discussion would show that the Settlement Commissioner has not been able to properly appreciate the relevant entries in the revenue record, certified copies of which have been produced on record. The above discussion would show that the learned Settlement Commissioner has erroneously held the properties to be evacuee trust properties. The oral as well as the documentary evidence relied upon by the respondents does not prove the properties in question to be evacuee trust properties, while on the contrary the evidence produced by the appellants proves otherwise."
5. Certain other occupants of the properties who were not parties to the proceedings before the Settlement Commissioner or the High Court have also applied for being made parties to this Appeal on the sole ground that they are the occupants of the properties. They have been heard though not formally impleaded.
6. Ch. Fazl-e-Hussain, Advocate, the learned counsel for the appellants has contended that the proceedings before the Settlement Commissioner under section 4, subsection (3) of the Act are administrative in nature and are not liable to interference in appeal by the High Court if sufficient material exists to sustain those findings. He has, like the learned counsel for the respondent, taken us through the entire record of the past over hundred years, to establish that all the properties notwithstanding their secular character had always remained attached to a religious and charitable institution. He has in particular relied upon a very exhaustive judgment given by the Civil Judge, 1st Class, Lahore in two suits filed by the members of the public under section 92 of the Code of Civil Procedure. The decision was given on 6-11-1943 by Civil Judge, Ist Class, Lahore, and it was not set aside by the High Court though a Regular First Appeal was filed against it. The decree of the Civil Judge, Ist Class, Lahore was executed and at the time of independence receiver was effectively in control and management of the property. According to the learned counsel for the appellants, full effect has not been given to that judgment and the consequences thereof, so far as these proceedings under section 4 of the Act are concerned.
7. Ch. Khalilur Rahman, Senior Advocate, the learned counsel representing respondent No, 1, has also referred to the old record in order to establish that the properties in dispute were in fact the personal properties except for one particular portion of it, not in dispute between the parties, which was recorded as the 'Sitla Temple'. As regards the earlier litigation under section 92 of the Code of Civil Procedure, the learned counsel contended that it could not operate as res judicata because the parties were different and further because the matter was not finally decided as the pending appeal (R.F.A. No, 300/1943) in the. High Court was held to have abated. In support of this proposition the learned counsel has referred to the decisions in Obedur Rahman and others v.
Darbari Lal and others (AIR 1927 Lah. 1), Lachhman and others v. Bansi Lal and others (AIR 1931 Lah.79(2) and Abdul Ghafoor v. Chief Settlement Commissioner and another (1985 SCMR 464). It has been the contention of these occupants that the record does not establish directly any dedication of the properties for religious or charitable purposes and the evidence produced or brought on record is by all standards insufficient to establish so. The properties in the absence of such evidence must be held to be evacuee properties transferable under the Act.
8. In the first place the enquiry envisaged under section 4, subsection (3) of the Act is a factual enquiry which is not dependent on the legality and validity of the trust created at its inception.
Subsections (2) to (4) of section 4 of the Act provide as hereunder:- "(2) Immovable Evacuee Property attached to any charitable, religious or educational trust or institution and such other evacuee property as may be specified in this behalf by the Central Government by Notificaton in the official Gazette, shall not form part of the compensation pool constituted under subsection (1).
(3) If a question arises whether an evacuee property is attached to a charitable religious or educational trust or institution or not, it shall be referred to 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 heard.
(4) Any person aggrieved by an order under subsection (3), may, within thirty days of the order, prefer an appeal to the High Court."
9. The object of the law is to find out and determine the factual status of the property as on the date of independence and its use as such, and not necessarily to go into antiquity and trace whether at its inception the trust was created strictly in accordance with law applicable to the parties or not. To that extent the learned counsel for the appellants may be justified in asserting that it is predominantly a factual inquiry held by the Administrative Officer in the first instance.
However, the provision for an appeal without any qualification both on fact and law to an established superior Court under subsection (4) of section 4 B negates the purely administrative character of the proceedings. They have to be treated as quasi-judicial and to be dealt with accordingly.
10. The decision in the civil suits filed under section 92 of the Code of Civil Procedure has not, it appears, received proper attention in the High Court. It is true that such a decision would not operate as res judicata because the parties are E different and the appeal had abated without a decision on merits. Order XXII, Rule 9, sub-rule (1) of the Code of Civil Procedure provided as hereunder:- "Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action."
' It was after 1972 Law Reforms that a change was brought about when a provision was made that there shall be no abatement on account of death of a party. It was a consequential change. In the present case, as the abatement in R.FA. No, 300 of 1943 had taken place in 1946, the law as then in existence would hold the field.
11. In the two Civil Suits Nos. 18 of 1941 and 23 of 1941, the property in dispute was described as hereunder:- "In the city of Lahore, on the southern side of the Circular Road, between Shahalmi and Lohari Gates there is a temple, known as Shri Shale Mandir (Temple or shrine of the goddess of smallpox). These suits have been filed, under section 92 of the Code of Civil Procedure, with respect to that temple and certain properties which are given in the schedules, attached with the plaints and which are alleged to appertain to the Mandir."
' Issues Nos. 2 and 4 were to the following effect:- "2. Is Sitla Mandir a public, charitable or a religious trust within the ambit of section 92, C.P. Code?
O.P."
"4. Is the property in dispute besides the temple proper, attached to the mandir and is it a public religious or charitable trust within the meaning of section 92? O.P."
' On Issue No, 2, the trial Court held as under:- "The mandir is a very old institution and its origin goes back to the time of the Moughal Emperors. A note is appended to the pedigree-table which was prepared during the settlement operations of the year 1868, a copy of relevant extract of which is Ex. P/154. In this note it is given that the Sitla Mandir was then considered to be in existence for the last 800 years. This fact is corroborated by the statement of Mahant Kirpal Gir (copy Ex. P. 85), which he made on the 29th August, 1855 in connection with the mu'afi proceedings of the land alleged to be attached to the Sitla Mandir. In this statement he said that the Sitla Mandir was an old institution and that it was constructed during the time of Moughal Emperors (Badshahi Ahid). The word 'Badshahi Ahid' is used with respect to the time of Moughal Emperors and not to the time of Sikh reign. If it had been constructed during the time of Maharaja Ranjit Singh then the words would have been "Ahid Sarkar or Ahid Maharaja Ranjit Singh." Thus there is no direct evidence of dedication but the circumstances to be gathered from the evidence are such that a very strong presumption of dedication to the public arises.This shrine is described at page 206 of the history of Lahore by Sheikh Mohd Latif, District Judge, published in 1892, as below:- "The shrine is dedicated to Sitla Mat or goddess of smallpox. It is situated on the side of the Circular Road outside the city, between Shahalmi and the Lohari Gates, and is a place of great worship to the Hindus, especially the mothers of children afflicted with small pox. They consider it of paramount importance to please the goddess in order to secure her favour for such children.
Consequently Sittla Mai or the smallpox mother, is worshipped and oblations are laid before it and offerings made. When a child is cured of smallpox parents come there to make presents in money and sweetmeats. In the Mandir are the images of Deviji and Shiviji Maharaj which are worshipped.
The other objects of worship in the shrine arc Pipal tree and Jand tree around which a pacca platform has been built, with the image of a loin of stone. There are cells and rooms for the accommodation of Sants and Sadhus and altogether the institution is in a flourishing condition.".
Accordingly I hold that this temple is being worshipped by the Hindus of Lahore since times immemorial without any let or hindrance; that the worshippers make offerings to the Sitla goddess at the time of worship and that people assemble in the Mandir in large numbers at the time of fares and Melas."
' As regards Issue No, 4, the properties attached to the temple, the full description of it was given in the following words:- "The properties in dispute are given in Schedule 'A' appended to the plaint No,18 of 1941. They arc as below:- "About 125 shops and houses single-storeyed to three-storeyed and other pieces of land surrounded as below:- ' North : by Circular Road ' South : by Lady Aitchison Boarding House ' East : Takia Mian and Garden of Rattan Chand.
' West : Road that leads from Anarkali to Mayo Hospital.
(2) A temple under the door of Shahalmi Gate.
(3) Temple of Siri Kalka Devi near the Haveli of Kanwar Nau Nihal Singh inside Mori Gate.
(4) The house situate in Chiri Maran Street inside Mori Gate, Lahore." The following findings were recorded with regard to these properties:- ' The documentary evidence shows that originally the property yielded very little income. As the city of Lahore grew in population the value of the property increased. Originally the object of the property was to feed Sadhus and Faqirs, give place residing to the wayfarers and maintain the Mandir. Afterwards, as is clear from the will of Prem Gir, the objects attached to the mandir grew in number. They were Gowshala, Ayur Vedic Maha Vidyala, Maha Vidyala, Karam Kand, charity to the widows and orphans and free kitchen for travellers and Sadhus. The plan Exhs.D/1, D/2, and D/3 show that the property belongs to the Sitla Mandir.
(ii) The history of the institution has been traced by me under issues 2 and 4 and I have held that the temple is a public, religious and charitable institution and that the properties in suit are attached to it. I arrived at this conclusion after referring to the admissions of the predecessors of the defendant. The defendant became the Mahant of the institution under the will, a copy of which is Ext. P/90. In this will it is clearly given that the property is attached to the Mandir. It means that the property was not the private property to mahant Prem Gir and was a public institution. The defendant has taken the property under the terms of this will, therefore he cannot repudiate the nature of the property which is given in the will. If any authority is needed on this point it is A.I.R. 1939 Privy Council 201, wherein it has been held that a person claiming under a will cannot repudiate the statements of the testator in the will about the nature of the property disposed of. After ascending the Gaddi the defendant got executed in his favour the rent deeds Exts. P/27, P/89, P/26, P/34, P/117, P/106 and P/28. In all these rent deeds the properties were mentioned as properties owned by Sitla Mandir."
12. On the 6th of November, 1943, the trial Court held the properties to be attached to the charitable, religious and educational institution, removed the trustee, and made arrangements for the orderly functioning of the trust.. A scheme of management was then drawn up on 17-11-1943. A Mahant was appointed whose name was Parkash Nand and an official receiver was appointed to look after the property, pending the appeal in the High Court which was dismissed on 21-11-1946 as having abated. It was such a state of affairs which existed at the time of independence. The properties in dispute were clearly identified, dealt with and legally treated as trust properties of the description mentioned in section 4 of the Act.
13. Our conclusion after going through the records and the material as old as 1855 leads to no different conclusion. In this background and on these facts it could not be held that these properties were not attached to the educational or charitable institutions as required by law.
14. We accept the appeal, set aside the judgment of the High Court and restore that of the Settlement Commissioner. No order as to costs.