1. ' NASIM HASAN SHAH, J.---The relevant facts are that respondent No,1 (Qazi Habibullah), a claimant displaced person, was allotted a garden measuring 29 kanals 8 marlas (consisting a part of Khasra No,9663) situate in the urban area of Kasur vide order of the Garden Allotment Committee dated 27-6- 1955. (This area is 'now being described as Khasra No,6963/1).
2. ' However, sometimes in 1960, the Khasra in question was taken over by the Evacuee Trust Board (hereinafter called the Board) and the allotment of respondent No,1 was cancelled on the ground that it was an evacuee property vide order of the Deputy Rehabilitation Commissioner (Land) dated 3-11-1960. Subsequently, the land in question alongwith some other land was auctioned by the Board in open auction and Muhammad Siddiq son of Qazi Habibullah, respondent No,1, was the highest bidder at the auction of this land for Kharif 1963 to Rabi 1965 and came into possession of the land under the auction. His father, (respondent No,1), however being desirous of retaining the allotment earlier made in his favour filed a writ petition in the High Court of West Pakistan for this purpose, but the same was dismissed as withdrawn with the observations that the writ petitioner may file an appeal before the Chief Settlement Commissioner under section 4(3) of the Displaced Persons (Land Settlement) Act, 1958 seeking a declaration that the land in question was not an evacuee trust property, if so advised. An appeal under section 4(3) of the said Act was, accordingly, filed by him before the Chief Settlement Commissioner which was entrusted to Mr. Muhammad Shafi Zafar, Additional Commissioner (Revenue), Lahore exercising the powers of the Chief Settlement Commissioner, but he dismissed the appeal vide order dated 23-1-1970 with the following observations:-- "The documents produced by the petitioner as well as the respondent show that State is the owner of the disputed land. Salag Ram Chela Sowarsati Dass Sahid Beragi was recorded as Dakhilkar under a Committee in the year 1891-92. Mahant Gopi Dass Chela Sowarsati Dass Sahid Beragi was recorded as Dakhilkar in 1911-12. Mutation No, 1707 indicates that Badsuwan Dass Chela of Mahant Gopi Dass was recorded as `Dakhilkar' and he was replaced by Mandir Hari Har by means of this mutation. Mandir Hari Har continued to be recorded as `Dakhilkar' in the subsequent registers Haqdaran Zamin 1938-39 and 1945-46 through Mahant Ramji Dass Bawa Mohan Dass, detailed report of the Tehsildar dated 22-10-1936 exists on Mutation No,1707 on which this mutation in favour of Mandir Hari Har was sanctioned by the Collector. A perusal of this report indicates that certain persons had instituted a suit in the Civil Court claiming ownership of the disputed land; but the suit was dismissed and it was also held by the Civil Court that the Manager could be selected by the public. It was held by the Tehsildar that the property belonged to Mandir Hari Har. The petitioner argues that a major part of the land under the occupancy tenancy of Mandir Hari Har has been allotted by the Border Allotment Committee to one Col. Nafees-ud-Din Ansari and Ex.P. 10 has been produced in support of this contention. It is argued that the allotment of other and of Mandir Hari Har to the said Colonel is proof that the land is not Evacuee Trust Property. The other land is not sub judice before me at present and it is for the Evacuee Trust Committee authorities to take necessary action in respect of its allotment. The documents produced by each side clearly establish that Mandir Hari Har is the occupancy tenant of the disputed land and there is therefore no doubt left that this land is attached to a religious institution as a Mandir is nothing but a religious institution.
3. In view of this, this petition is rejected and the declaration asked for is refused."
4. ' Dissatisfied with this order, the respondents filed an appeal under section 4(4) of the Act praying for setting aside of the above order passed by the Chief Settlement Commissioner and for restoration of the order of the Garden Allotment Committee dated 27-6-1955. This appeal was accepted by a learned Single Judge of the High Court who observed, inter alia, as follows:-- "All the documents which have been placed on record by the contesting parties go to show that the property is otherwise owned by the State and, as mentioned above, till 1936 it was in the name of different Mahants and Gurus as Dakhilkars, but later on vide Mutation No,1707 Dakhilkari rights therein were transferred in the name of Mandir Hari Har. I am afraid, the material on record, which has been relied upon by the learned Chief Settlement Commissioner in declaring the property to be evacuee trust property is not sufficient to declare it as such. 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 trust, if required."
5. ' In reaching his decision the learned Judge relied upon a judgment earlier delivered by him in a case wherein he had elaborately dealt with this subject namely S. Abdus Saleem and 153 others v.
6. Chairman, Evacuee Property Trust Board and another PLD 1975 Lah.
960. On account of his view, as expressed in the aforesaid judgment and reiterated by him in the present case, the learned Judge was pleased to allow the appeal and to set aside the order of the Chief Settlement Commissioner dated 23-1-1970. This appeal by leave of this Court, is directed against the aforesaid judgment of the learned Single Judge of the High Court dated 4-6-1974.
7. ' Learned counsel for the parties have been heard.
8. ' We observe that the judgment relied upon by the learned Single Judge namely S. Abdul Saleem and 153 others v. Chairman, Evacuee Property Trust Board and another PLD 1975 Lah. 960 has been expressly set aside by this Court in Evacuee Trust Property Board, Lahore and another v. Syed Abdus Saleem and others 1990 SCMR 143. In fact, this Court has had occasion to deal with the question arising in this case, in some other judgments as well. Thus, in the case of District Evacuee Trust Committee v. Mashraf Khan and 3 others 1989 SCMR 1636 where the question was whether in the absence of any deed of trust indicating the real purpose of trust, mere production of the extracts from the Record of Rights or City Surveys which describe a property as "Dharamshala", "Tikano" or by other similar expression, any such property can be declared to be attached to a religious, charitable or educational trust for the purpose of section 4 of Act (XXVIII of 1958), it was held that the entries in the official record taken as a whole leave no measure of doubt that the property was conveyed by endowment for the charitable purpose of Dharamshala and there is no indication or any other evidence produced to show that the property was privately owned by any person". Therefore, applying the rule of preponderance of evidence the issue was decided in favour of the appellant that the property was attached to a religious and charitable turst.
9. ' Similarly, this Court in District Evacuee Trust Committee v. Muhammad Umar and others (Civil Appeal No, K-31 of 1973) 1990 SCMR 25 vide judgment delivered on 25-4-1989 observed:-- "It is difficult to subscribe to the view taken by the High Court that in the absence of the trust deed a property could not be declared to be attached to a religious or charitable trust. It is to be noticed that a document creating a trust under the Hindu Laws does not require registration. In this case, all the trustees were Hindus who left Pakistan at about the time of Independence. The trust deed must have been in their possession. That being so, to demand that the trust deed must be produced before a property can be declared as attached to a religious or charitable trust is in the circumstances a tall order. On the other hand, there is no reason why the presumption of correctness which attaches to official records from it remains unrebutted, should not be given effect in deciding the nature of the property."
10. Thus, the view of this Court on this question is that if sufficient prima fade evidence is adduced for showing that the property in question was attached to a religious or charitable institution and this evidence is not displaced by any other reliable evidence, the burden of showing actual creation of trust on the party asserting that the property is attached to a religious or charitable trust is not essential and the matter can be decided on the rule of preponderance of evidence.
11. ' In the present case, the entries in the Revenue Record from 1936 onwards consistently show that the property belonged to Mandir Hari Har. The conduct, user and treatment of the property also indicate that the property was attached to the said Mandir and no cogent evidence pointing to the contrary has been shown to us. In these circumstances, the order of the Chief Settlement Commissioner dated 23-1-1970 declaring that the property was an evacuee trust property, and therefore, could not be allotted to a displaced person, was correct.
12. ' The upshot is that the judgment of the High Court dated 4-6-1974 must be set aside and the order of the Additional Commissioner (Revenue) exercising the powers of the Chief Settlement Commissioner dated 23-1-1970 restored.
13. ' This appeal is allowed. Since a complicated question of law arose for adjudication, the parties shall be left to bear their own costs.