DISTRICT EVACUEE TRUST COMMITTEE vs MASHRAF KHAN and 3 others

1. ' ZAFFAR HUSSAIN MIRZA, J.--Leave to appeal was granted in this case to consider the following question of law: "Whether in the absence of any deed of trust indicating the real purpose of trust mere production of the extract from the Record-of-Rights or City Surveys which describe a property as "Dharamshala" "Tikano" or by A 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"

2. ' The dispute in this case relates to property bearing City Survey Nos.C/867 and 869 situated at Tando Allah Yar, District Hyderabad. The District Evacuee Trust Property Committee, the appellant herein, applied under section 4(3) of the Displaced Persons (Compensation and Rehabilitation)

3. Act, 1958 seeking a declaration that the aforesaid property is attached to a Hindu religious and charitable trust. This application was decided by Mr. S. M. Azhar, Settlement Commissioner with powers of Chief Settlement Commissioner, Karachi and was dismissed vide his order dated 7-8- 1969. Before him two extracts from the City Survey Record were produced in which the property in the column of 'holder' was entered as `Dharamshala Charitable Dawarkadas Varindumal, minor under the Guardianship of trustee Lokumal Ghamshandas. By inheritance' It seems, no other evidence was produced and respondents Nos. 1 to 3 remained absent and were proceeded against ex parte. The learned Officer took the view that this entry, unsupported by any other evidence, was insufficient to sustain the claim of the appellant. Further as the document indicated that the right of management of Dharamshala Dawarkadas Varindumal was governed by inheritance showed that the property was owned by private persons and not by any trust, ' The appellant preferred an appeal before the then Sind and Baluchistan High Court which was dismissed by a learned Single Judge of that Court. The learned Single Judge agreed with the learned Settlement Commissioner that the evidence produced was insufficient to come to proper finding that the property was attached to a charitable, religious or educational trust or institution.

4. The learned Judge observed that mere entry in the record of rights cannot determine title or proprietary rights in immovable property. On this sole ground the learned Judge dismissed the appeal by his order dated 12-3-1973. Hence this appeal.

5. ' We have heard Ch. Fazle Hussain learned counsel for the appellant but no one has appeared on behalf of the respondents. It has been urged by the learned counsel that the learned Settlement Commissioner erred in interpreting the documentary evidence produced by the appellant in support of its claim that the disputed property was attached to a religious and charitable trust as vague and inconclusive. He submitted that merely because the management of the property which was dedicated for the purpose of Dharamshala, a recognized religious and charitable purpose under the Hindu law devolved by inheritance does not lead to the conclusion that the property was owned by private person and not attached to a trust. He also disputed the correctness of the view adopted by the learned Single Judge that 'the evid6nce consisting of extracts from the survey record maintained by the City Survey Department, Hyderabad was insufficient.

6. After hearing the learned counsel we find substance in his submissions. The city survey record clearly disclosed that the property was entered in the name of "Dharamshala Charitable". An endowment for the purpose of Dharamshala, under the Hindu law is clearly valid as a religious and charitable purpose. So far as the name of Dwarkadas Varindumal is concerned it seems that this person was B a minor under the guardianship of trustee Lokumal Ghanshamdas. The words "by inheritance" clearly apply to the office of trustee-ship which was governed by the rule of succession or inheritance. In any case 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 had to be decided in favour of the appellant that the property was attached to a religious and charitable trust. So far as the sufficiency of evidence is concerned, we have already expressed our view in a 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 arc presumptive evidence of title sufficient to sustain a 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 disputes 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 cnterics 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 then reliance reliance placed by the learned Single Judge on AIR 1926 P E,100 Thakur is Nirman Singh and others v. Thakur Lal Rudra Partab Narain Singh and others was inapt and irrelevant. The question of law decided in the reported case was totally different arising in the context of facts also unsimilar 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.

7. For the foregoing reasons we have come to the conclusion that the disputed property in this case was a property attached to a religious and charitable trust and was accordingly evacuee trust property. However, so far as transfers made in favour of respondents Nos. 1 to 3 we may observe that while giving effect to our decision due regard shall be had to section 10 of the Evacuee Trust Properly (Management and Disposal) Act, 1975 (Act XIII of 1975) which saves and validates bona fide transfers of evacuee trust properties against verified claims in which Permanent Transfer Deeds have been issued prior to June, 1968.

8. ' This appeal is allowed in these terms with no order as to costs.