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Miscellaneous Appeal No. 29 of 1967, decided on 16th Sep tember 1971.

S. 16‑A read with Ss. 4(3) & 4‑A and Settlement Scheme No. I ‑Disposal of evacuee trust property‑Object of trust in question should be proved to be charitable, religious or educa tional and simply showing house to be in name of trust not suffi cient‑Case decided by settlement Authority in absence of necessary party, Evacuee Property Trust Board‑Property not proved to be trust property nor shown to be acquired for trust purposes‑Order set aside.

Divisional Evacuee Trust Committee v. Abdullah and 2 others 1970 S C M R 503 fol.

S. Nasiruddin for Appellant.

Matloob Hassan Siddiqui for Respondents.

Date of hearing : 16th September 1971.

This appeal is directed against the order of the Settlement Commissioner, Nawabshah, dated 2nd February 1967, declaring House No. IC‑430/433 in Ward No. I, Mohalla Manuabad, Nawabshah, as a property attached to a Religious Trust, and in result holding that its transfer in favour of the appellant was void ab initio. The facts of the case, as disclosed from the papers on the file and as stated by the learned counsel for the parties, are that the house was transferred to the appellant in earmarking proceedings on 9‑12‑1959, P. T. O. was issued to harm on 13‑1‑1960, and P. T. D. on 22‑2‑1963. The transfer in favour of the appellant was challenged by Mst. Noor Jehan, respondent No. 2, in petition under Article 98 of the Constitution before this Court, being Writ Petition No. 182 of 1964, which was however, dismissed on 23‑4‑1966. The appellant then filed ejectment proceeding against the three respondents in the Court of Civil Judge and Controller at Nawabshah, which were contested by them and they then approached the Settlement Commissioner on 8‑9‑1966, through an application under section 4(3) of the Displaced Persons (Compensation and Rehabilitation) Act for a declaration that the house was a property attached to a Religious Trust and therefore its transfer in favour of the appellant was illegal. The learned Settlement Commissioner mainly relied on the statement of Ghulamullah Sub‑Inspector of Evacuee Property Trust Board, and held that the house was a property belonging to Gurdwara Punjabi Khalsa as it stood in the name of the Secretary, Sants, Singh Guru Singh, and as such it was attached to a Religious Trust.

2. Mr. S. Nasiruddin, learned counsel for the appellant, vehemently contended that on the allegations made, the Evacuee Property Trust Board was a proper and necessary party in the proceedings before the learned Settlement Commissioner and the absence of this necessary party made the entire proceedings bad in law. He therefore urged that the order of the learned Settlement Commissioner should be set aside on this ground alone. The learned counsel then pointed out that the transfer docu ment issued in favour of the appellant clearly showed that the house belonged to one Dyaldas son of Napardas, and he contended that this aspect of the case was totally ignored by the learned Settlement Commissioner. He further urged that the respondents having themselves asked for the transfer of the house under Scheme No. 1 of the Act, were precluded from raising the plea that the property was not available for transfer under that Scheme. In furtherance of this contention, the learned counsel pointed out that although subsection (3) was added to section 4 by Displaced Persons Laws Amendment Ordinance, 1964 on 28th December 1964, yet the respondents did not make resort to this provision of law until 8th September 1966, much after ejectment proceedings were initiated against them by the appellant and in these circumstances, the relief even if due, should not have been granted to them. He finally argued that it was not sufficient to simply show that the house was in the name of trust for it was further necessary to prove that the object of the Trust in question was Charitable, Religious or Educational. In this connection the learned counsel relied on the case oil Divisional Evacuee Trust Committee v. Abdullah and 2 others (1970 S C M R 503).

3. There is great force not only in the last contention raised by the learned counsel for the appellant, but also that Evacuee Trust Board, should have been joined in the proceedings as it was necessary and a proper party. The Evacuee Property Trust Board constituted by the Central Government under the Scheme framed under section 16‑A(1) of the Act, has been vested with powers of general supervision, management and disposal of the Evacuee Trust Properties forming trust‑pool under section 4‑A. The respondents, after all, approached the learned Settlement Commissioner as informants and the only person that could legitimately claim ownership of the house was the Evacuee Property Trust Board. The learned Settlement Commissioner, therefore decided the controversy in the absence of a necessary and proper party. Moreover the extract from the Record‑of‑Rights showing the name of the owner of the house as the Secretary, Santo Singh Guru Singh, did not by itself prove that the property was a Trust Property or that Santo Singh Guru Singh was a charitable, religious or educational institution. There is also nothing to show that the house was acquired for the Trust purposes. In the case cited by the learned counsel for the appellant, namely, Divisional Evacuee Trust Committee v. Abdullah and 2 others the facts were somewhat similar. No document relating to the constitution of the Panchayat was produced and reliance was being placed on a copy of sale‑deed of another property in favour of the Panchayat. Their Lordships of Supreme Court upheld the contention that the sale‑deed would not by itself go further to prove that the Panchayat was a religious or charitable institution or that the property acquired by the Panchayat was a trust property. I hold accordingly in this case.

4. For the reasons, this appeal must be allowed. I therefore, set aside the order of the learned Settlement Commis sioner, dated 2‑2‑1967, and remand the case to him to deal with ft afresh, according to law, and in the light of the observations spade above. In the circumstances, however, there will be no order as to costs.

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