1. ' SAEEDUZZAMAN SIDDIQUI, J.---The abovementioned 4 Civil Appeals are filed by the leave of this Court to call in question a common judgment of High Court of Sindh passed in Constitution Petitions Nos. D-167 of 1984, D-132 of 1984, D-143 of 1984 and D-144 of 1984 dated 24-1-1991. By the impugned judgment the learned Division Bench of High Court of Sindh declared the order passed by Chairman, Evacuee Trust Properties Board and Secretary, Ministry of Religious Affairs and Minority Affairs, Islamabad (hereinafter to be referred to as 'Chairman of the Board and Secretary' respectively) declaring property No, LY-10/90-V-B/183 Lyari Quarters, Karachi, hereinafter to be called 'the suit property' as evacuee trust property, as without lawful authority and of no legal effect. Leave was granted in the case to consider whether the finding of facts recorded by the forums of exclusive jurisdiction, that the property was an evacuee trust property, was rightly interfered with by the High Court in exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
2. ' The brief facts of the case arc that the suit property was transferred under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958 to Ramzan Ali s/o Ali Bhoy (respondent No, 1 in C.A. 174-K/91) by the Additional Settlement Commissioner, Karachi, vide order dated 25-2-1988. The said Ramzan Ali was also issued a Permanent Transfer Deed No, KycDSC-II- 940 dated 30-6-1974 in respect of the suit property. Ramzan Ali sold the suit property to Haji Nizamuddin (predecessor of respondent No 1, 'A to C', in C.A. 171-K/91) through registered deed. Haji Nizamuddin in turn sold the suit property to one Ismail (respondent No, 1 in C.A. 173-K/91). Ismail sold the suit property to one Zubair and others (respondents Nos. 1 to 3- in CA. 172-K/91). It appears that on 2-6-1975 Nizamuddin made an application under section 10(2) of the Evacuee Trust Properties (Management and Disposal) Act, 1975 before the Chairman of the Board- for validation of transfer of suit property in favour of Ramzan Ali. It further appears that the Deputy Administrator, Evacuee Trust Properties, also moved an application under sections 8 and 10 of Evacuee Trust properties (Management and Disposal) Act 1975, before the Chairman of the Board on or about 30- 10-1976, impleading Ramzan Ali and Haji Nizamuddin as respondents, seeking cancellation of transfer documents in respect of suit property issued in favour of Ramzan Ali. Later on, subsequent purchasers of the suit property namely, Ismail son of Haji Yousaf, Muhammad Zubair son of Nooruddin, Muhammad Yousaf s/o Ruknuddin and Mst. Saira Bai w/o Salahuddin were also joined as respondents in the above proceedings on 25-3-1979. The Chairman of the Board after recording evidence in the case and hearing the parties declared the suit property as evacuee trust property and consequently the transfer documents issued in favour of Ramzan All by the Settlement Department in the year 1968 were declared as void. The order passed by the Chairman of the Board was challenged before the Secretary in a Revision Petition by the original transferee Ramzan Ali as well as the subsequent purchasers. The revision petition filed before the Secretary was dismissed by order dated 20-6-1983, whereupon Constitution Petitions Nos. D-132/84, D-143/84, D144/84 and D-167/84 were filed in the High Court of Sindh, which were allowed and the orders passed by the Chairman of the Board and Secretary were declared as without lawful authority and of no legal effect. The transfer documents issued in favour of Ramzan Ali in 1968 in respect of the suit property were held to be valid and binding. On a petition filed by the Government of Pakistan and Chairman of the Board, leave was granted in the case as aforesaid.
3. ' Mr. M.G. Dastagir, the learned counsel for the appellants contended before us that the High Court while exercising jurisdiction under Article 199 of the Constitution could not disturb the finding of facts recorded by the Chairman of the Board which was a Tribunal of exclusive jurisdiction. It is further contended by the learned counsel for the appellants that the suit property had all along appeared in the record as the evacuee trust property and as such its transfer in favour of Ramzan Ali in 1968 under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958, was wholly without jurisdiction. The learned counsel in support of his contention relied on the following cases:--
(1) Evacuee Trust Property Board v. Rahim Khan and 3 others (1989 SCM R 1605);
(2) Qazi Akbar Jan and others v. Chairman, District Evacuee Trust Committee, Peshawar and others (1991 SCM R 2206).
(3) Secretary, District Evacuee Trust Property v. Qazi Habibullah and 2 others (PLD 1991 SC 586).
4. ' After hearing the learned counsel for the appellants, we are of the view that no case for interference with the judgment of High Court is made out.
5. ' It is admitted before us by the learned counsel for the appellants that the only evidence available before the Chairman of the Board to determine the nature of the property was an extract from the register of enquiry in connection with the pre-survey of Karachi (Lyari Quarters). The entries in this register were made on the basis of a survey conducted on 14-10-1940. The suit property is shown in Column No, 4 of the extract under heading "supposed names of holders as in the Municipal record or otherwise, as belonging to Hindu Sahta Panchayat by trustees (1) Dharamdas Ishaichand, (2)
6. Hemandas Ghandomal, (3) Karamsingh Nanoomal. Similarly, under Column No, 8(b) of the extract which bears the heading, "Name of holder, mortgagee in possession, lessee other right or incumberance holder and attached easement", the entries in Column 4 are repeated. It is quite clear from the order passed by the Chairman of the Board that there was neither any trust deed available in respect of the property to show its nature nor any evidence was led in the case to show that the property was attached to any religious, charitable or educational trust or the income arising from the property was applied to a trust created for religious, charitable or educational purposes. There is nothing in the extract relied upon by the learned counsel for the appellants, to indicate that the suit property was either a religious or charitable or an educational trust or it was attached to any of the trust of such a nature. In the 'absence of any evidence to show the nature of the trust, or to prove the fact that the income arising from the suit 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.
7. Mr. Dastagir, the learned counsel for the appellants has, however, very strenuously relied. On the cases referred to above to contend that in similar circumstances this /Court upheld the contention that even in the absence of a trust deed the property could be treated as an evacuee trust property. The cases cited by the learned counsel for the appellants are quite distinguishable on facts and are of no assistance to the appellants in the present case. In the case Evacuee Trust Property Board v. Rahim Khan and 3 others (supra), the property was entered in the City Survey Record as "Dharamsala", "Tikano". This Court while allowing the appeal of Evacuee Trust Board in the above-cited case observed as follows:- "3. After hearing the learned counsel we find substance in the contentions raised by him in the light of the record placed on the file. The order of the learned Settlement Commissioner reveals that the appellant had produced two documents before him which showed that the property was mentioned as `Tikano' in the Extract (Exh. 2) and the Enquiry Register (Exh. 4) of the City Survey Department, Hyderabad. The copy of the extract from .The Property Register Card has also been placed on the file of this appeal (Printed, Record, Page 11). In this document, in the column regarding holder and the originof title, it is mentioned `Tikano Kalachand Rochiram'. Further this document reveals that `Kalachand Rochiram or his heirs have no right to sell the property'. This would clearly indicate that the property was a religious endowment dedicated to a temple or in any case, for religious purpose. The embargo on the right to alienate the property on Kalachand or his heirs further clearly excludes the private ownership of the said person and would support the conclusion that he was merely to manage or administer the affairs of the trust as a trustee or manager.
8. ' Be that as it may, there is no evidence produced by the respondents to show that the property was entered in the name of a private owner. The learned Single Judge of the High Court, in his order, did not doubt that the property was shown in the official record as a religious endowment for the purpose of `Tikano' but the main reason that prevailed with the learned Single Judge was that this evidence in the form of entries in the Property Register maintained by the City Survey Department, Hyderabad was insufficient to sustain a finding that the property was attached to evacuee religious charitable trust. In this behalf we may refer to section 135-J of the Sindh Land Revenue Code, which was the law applicable at the time of the preparation of the record and section 52 of the West Pakistan Land Revenue Act which is applicable now, under which a presumption of truth is attached to such entries in the official record. The obvious effect of such statutory provision is that the contents of the entries shall be presumed to be correct until the contrary is proved. The effect of production of this evidence, therefore, is that the onus of proof shifts to the respondents to prove the contrary, namely, that the property was not religious trust property. We are unable therefore to subscribe to the view taken by the learned Single Judge, having regard to the fact that no evidence whatsoever was produced by the respondents, that this evidence was insufficient to hold the property as attached to a religious or charitable trust. It is well-settled that in civil proceedings the rule of decision is that preponderance of evidence decides the issue."
9. ' From the above-quoted observations, it is quite clear that the property in that case was entered in the record of rights in the ownership of Dharamsala' and `Tikano' which sufficiently established that the property was a religious endowment. It was further found as a fact in that case that 'Kalachand Rochiram' or his heirs who were shown as trustees had no right to sell that property and this embargo reinforced that conclusion that the property was used for religious purposes only. The evidence in that case undisputedly established that the property was a temple and that the persons who were shown as its trustees had no right to alienate or sell the property.
10. ' In Qazi Akbar Jan's case (supra) it was found as a fact that the owner of the land was a 'Mandar' which was under the management of religious office-holder. This entry in the Revenue Record showing the property as belonging to 'Mandar' was considered sufficient evidence for the purpose of establishing the religious nature of the endowment. Similarly, in the case of Secretary, District Evacuee Trust Property (supra), this Court found as a fact that the Revenue Record from 1936 onward consistently revealed that the property in that case belonged to Mandir Hari Har. The other evidence in that case also established the user and treatment of the property as attached to a 'Mandar' and there was no contrary evidence available on record.
11. ' It cannot be disputed that if the property is entered in the record of rights as a 'Mandar', 'Dharamsala or Tickano', then it prima facie establishes the nature of the property as a religious trust. In such cases the burden of proving that the property is not a religious trust or it is not attached to religious trust is on the party who alleges that the property has been rightly transferred to them as non-trust property under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1958. In the present case, the entry relied by the appellants in the record of survey did not show that the suit property was either a religious or an educational or a charitable nature. These c entries also do not show that the suit property was attached to a trust of religious, charitable or educational nature. In the circumstances, there was no evidence available on record before the Chairman of the Board to reach the conclusion that the suit property was an evacuee trust property. The learned Judges of the Division Bench, therefore, rightly quashed the orders passed by the Chairman of the Board and the Secretary respectively, holding the suit property as an evacuee trust property. No case for interference with the judgment of High Court is made out.
12. The appeals are, accordingly, dismissed. In the circumstances of the case, there will be no order as to costs.