 
 
IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT: 
 
 
MR. JUSTICE EJAZ AFZAL KHAN 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
CIVIL APPEALS NO. 1540 and 2106 OF 2006. 
(On 
appeal 
from 
the 
order 
dated 
27.06.2006 by the Lahore High Court, 
Lahore passed in C. R. Nos. 1325  of 2005 
and 782 of 1998).  
 
Khurshid Ahmad and others. 
Deputy Admin Evacuee Trust Property Board Faisalabad.  
 
 
 
 
 
 
 
 
 
  …Appellant(s) 
Versus 
Rana Mumtaz Ahmad and others. 
Ghani and another.  
  
 
 
 
 …Respondent(s) 
 
For the Appellant(s): 
Syed Zafar Ali, Sr. ASC.  
 
 
 
 
(in CA.1540/2006) 
 
Hafiz S. A. Rehman, Sr. ASC 
 
 
 
 
(in CA.2106/2006) 
 
For the respondents: 
Malik Muhammad Qayyum, Sr. ASC. 
 
 
 
 
Hafiz S. A. Rehman, Sr. ASC.  
Mr. M. Munir Peracha, ASC. 
Hafiz M. Yousaf, ASC. 
 
 
 
 
(in CA.1540/2006) 
 
 
 
 
 
 
 
 
 
Mr. M. Akram Sh., Sr. ASC. 
 
 
 
 
Hafiz M. Yousaf, ASC. 
 
 
 
 
Malik M. Qayyum, Sr. ASC.  
 
 
 
 
Mr. Naveed Akhtar, ASC.  
 
 
 
 
(in CA.2106/2006) 
 
Date of Hearing:  
11.12.2015. (Judgment Reserved).  
 
J U D G M E N T  
 
 
EJAZ AFZAL KHAN, J.- Civil Appeal No.1540/06: This 
appeal with the leave of the Court has arisen out of the judgment 
dated 09.05.2006 of Lahore High Court whereby the learned 
Single Judge in its Chambers dismissed the revision petition filed by 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
2
the appellant. Facts of the case as narrated in para 2 of the leave 
granting order read as under:- 
“2. 
The brief facts for disposal of this 
petition of that petitioners and respondents 
No. 4 and 5 filed a suit against respondent 
Nos. 2 and 3 for specific performance of 
agreement dated 28.03.1995 in respect of 
land comprised in Killa Nos. 1, 2, 9, 10, 11, 20 
and 21 of square No. 35, and killa No. 228, 13 
to 18, 24 and 25 of square No. 36 measuring 
187 kanals, 1 marla situated in Chak No. 
124/JB Tehsil and District Faisalabad. The suit 
was decreed on conceding statements 
dated 18th December, 1995 and 21st January, 
1996 whereby the suit was decreed to the 
extent of 15 kanal in favour of respondent 
No. 5 and the suit for the remaining area was 
decreed in favour of the petitioners and 
respondent No. 4 in equal-shares vide 
judgment and decree dated 25.1.1996. After 
a lapse of more than seven years on 28th July, 
2003 respondent No. 1 Rana Mumtaz Ahmed 
filed an application under section 12(2) CPC 
in 
the 
Court 
of 
learned 
Civil 
Judge 
Faisalabad 
against 
the 
plaintiffs 
and 
defendants in the suit for setting aside of 
judgment and decree dated 25.1.1996 on 
the 
ground 
that 
it 
was 
obtained 
by 
misrepresentation and fraud. Learned Civil 
Judge, First Class, Faisalabad vide order 
dated 15.3.2005 set aside the judgment and 
decree of the Trial Court. At the same time 
learned Civil Judge ordered impleadment of 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
3
respondent No. 1 Rana Mumtaz Ahmed as a 
party in the said suit”.   
 
2. 
 
The 
points 
requiring 
consideration 
have 
been 
formulated in para 4 of the leave granting order which reads as 
under:- 
“4. 
We have heard the arguments of Syed 
Ali Zafar, ASC for the petitioners and have 
perused the record as well as the provisions 
of law applicable to the case and have 
come to the conclusion that the following 
questions 
require 
consideration 
and 
examination : 
 
(i) 
whether the judgment and decree of 
the trial Court was obtained by way of 
fraud, mis-representation or want of 
jurisdiction making out a ground for 
entertainment of the application under 
Section 12(2) CPC;  
 
(ii) 
whether in view of the provisions of 
section 27 of the Specific Relief Act the 
application under section 12(2) CPC 
was barred and ought not to have 
been entertained; 
 
(iii) 
Whether the order passed by learned 
Civil Judge, Faisalabad allowing the 
application under section 12(2) CPC 
and setting aside the judgment and 
decree is not contrary to and in 
violation of section 27 of the Specific 
Relief Act;  
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
4
 
(iv) 
Whether in deciding an application 
under section 12(2) CPC the learned 
Civil Judge, First Class, Faisalabad 
acted 
within 
jurisdiction 
to 
allow 
impleadment of respondent No. 1 as a 
party in the suit;  
 
(v) 
whether by ordering impleadment of 
respondent No. 1 as a party in the suit, 
the learned Civil Judge, First Class 
revived the claim of respondent, Rana 
Mumtaz Ahmed to agitate his claim 
over 
the 
land 
in 
question 
which 
otherwise had become seemingly time 
barred; and  
 
(vi) 
whether the judgment of the High 
Court suffers from non-consideration of 
above material questions.”    
 
3. 
 
Civil Appeal No.2106/06: This appeal has arisen out of 
the judgment dated 9.5.2006 of the Lahore High Court whereby 
the learned Single Judge in its Chambers dismissed the revision 
petition filed by the appellant. Points raised and noted at the time 
of leave read as under:- 
“After hearing the learned counsel for the 
petitioner at length, leave to appeal is 
granted to consider; inter alia, whether the 
jurisdiction of the Civil Courts was ousted in 
terms of Section 14 of the Evacuee Trust 
Property (Management and Disposal) Act 
No.Xiii of 1975, unless order of the Chairman 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
5
was shown to be patently void and without 
jurisdiction.” 
4. 
 
The learned ASC appearing on behalf of the 
appellant in CA-1540/06 contended that where the application 
filed by respondent No.1 neither mentioned the source of 
knowledge nor explained the reasons of delay of each day in 
filing the petition, his application under Section 12(2) CPC was 
liable to be dismissed; that the respondent who also claimed to 
have entered into an agreement to sell with Ghani could not get 
anything out of the suit on reversal of the decree under Section 
12(2) CPC when he never instituted a suit for specific performance 
of contract, the more so when it was not asserted that the 
appellants ever knew about the agreement dated 28.01.1990 
and that in the absence of any allegation of fraud or 
misrepresentation or want of jurisdiction, application under 
Section 12(2) merited outright dismissal.  
5. 
 
Learned ASC appearing on behalf of the respondents 
contended that where respondents were never served in 
accordance with the requirements of law any judgment and 
decree passed at their back could not stand, therefore, their 
application under Section 12(2) of the CPC was rightly allowed 
and that the judgment and decree of the High Court maintaining 
the same being free from any infirmity is not open to any 
exception.  
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
6
6. 
 
Learned ASC appearing on behalf of the appellant in 
CA-2106/06 contended that where the property forming subject 
matter of the dispute was evacuee trust property, it could not 
have been allotted to anyone; that Ghani claimed this property 
on the basis of RL-II which appears to be bogus on the face of it. 
He next contended that if and when a question arises whether an 
evacuee property is attached to charitable, religious or 
educational trust or institution it shall be decided by the Chairman 
Evacuee Trust Property Board (ETPB) whose decision shall be final 
and shall not be called in question in any Court. He further 
contended that where the legislature has created a forum for 
deciding such question recourse must be had to that as 
jurisdiction of any other Court is expressly barred by Section 14 of 
Evacuee Trust Property (Management & Disposal) Act. The 
learned ASC argued further that where the Chairman Evacuee 
Trust Property Board after taking cognizance of the matter and 
recording evidence of the parties came to the conclusion that 
the property forming subject matter of dispute is an evacuee trust 
property, its judgment being final could not be called in question 
in a Civil Court. The respondent, the learned ASC maintained, in 
the first instance filed a revision before the Federal Government 
but for the reasons best known to him withdrew it; notwithstanding 
he could have pursued it and then filed a writ petition in the High 
Court if the decision of the Federal Government happened to be 
against him, but his failure to do so has blessed the judgment of 
the Chairman ETPB with finality. The decision of the Civil Court, the 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
7
learned ASC by concluding his arguments contended, being 
coram non judice has no effect altogether. The learned ASC in 
support of his contention placed reliance on the case of Evacuee 
Trust Property Board. Vs. Mst. Zakia Begum and others (1992 SCMR 1313).  
7. 
 
The learned ASC appearing on behalf of the 
respondents in Civil Appeal No. 2106 of 2006 contended that 
where the property being evacuee has been allotted to 
respondent No. 1 as back as 24.04.1960 vide RL-II No. 561 and at 
no stage has it been treated as evacuee trust property, claim of 
the Evacuee Trust Board was absolutely unjustified and so was its 
decision declaring it to be evacuee trust property vide judgment 
dated 03.01.1995. He next contended that inquiry was allegedly 
conducted as to the genuineness of the allotment of the property 
to the respondent but it being one sided has no effect that too 
when it has not been proved in accordance with law before any 
Court. The learned ASC by referring to the case of Muhammad 
Jamil Asghar. Vs. The Improvement Trust, Rawalpindi (PLD 1965 SC 
698) contended that Evacuee Trust Board can only have assumed 
jurisdiction to decide if a question arises whether an evacuee 
property is attached to a charitable, religious or educational trust 
or institution or otherwise, but where there is no such question, the 
very jurisdiction of the Evacuee Trust Board to inquire into the 
matter becomes questionable. The learned ASC next contended 
that where the property in dispute has been in possession of the 
allottee ever since its allotment, claim of the Evacuee Trust Board 
would collapse like a house of cards. He next contended that 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
8
revision petition before the Federal Government or a writ petition 
could have been filed before the High Court but where in view of 
the judgment rendered in the case of Federation of Pakistan 
through Secretary, Ministry of Religious Affairs/Minority Affairs, 
Government of Pakistan, Islamabad. Vs. Mufti Iftikhar-Ud-Din and 
another (2000 SCMR 1) remedy of revision before the Federal 
Government has been held to be inadequate and the 
determination of disputed questions of fact without recording the 
evidence was not possible, recourse was rightly had to the Civil 
Court which being just and proper in the circumstances of the 
case cannot be looked askance at. He next contended that an 
isolated entry in the revenue papers showing the property to be 
Gaoshala Society Bar cannot make it charitable in the absence 
of any document showing its dedication to charitable, religious or 
educational purposes. The learned ASC by concluding his 
arguments contended that where there is no evidence much less 
conclusive on the record to show that the suit property being an 
evacuee property has ever been attached to charitable 
purposes etc., the judgment rendered by the Chairman Evacuee 
Trust Board cannot take precedence over the judgment of the 
Civil Court.  
8. 
 
We have gone through the entire record carefully and 
considered the submissions of the learned ASCs for the parties.  
9. 
 
Before we deal with the tug of war going on between 
the appellants and respondent of Civil Appeal No. 1540 of 2006 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
9
we would like to see as to what is the nature of the property; 
whether it is evacuee property simplicitor or Evacuee Trust 
Property; whether it has ever been allotted to Ghani, respondent 
No. 1 in Civil Appeal No. 2106 of 2006; and whether it could be 
treated as a property attached to charitable, religious or 
educational trust or institution. 
10. 
 
A look at the extracts from the record of rights for the 
years 1938-1939 and onward would reveal that this property has 
been entered as Gaoshala Society Bar. These entries have been 
repeated till 1960-1961. After 1960-1961 the Auqaf Department 
took the control and management of this property and had been 
managing this property through lease to different persons as is 
evident from the entries made in the periodical records of 1964-
1965, 1968-1969, 1980-1981, 1984-1985 and 1988-1989. Respondent 
No. 1 claims to be the allottee of this property through RL-II 
mentioned above but at no stage of time any entry of its 
allotment to the respondent figured in any of the periodical 
records ever since 1946-1947. The respondent alleged that this 
property was confirmed in his name but the entries in RL-II do not 
conform to his claim. He moved a petition under Sections 8 and 
10 of the Evacuee Trust Property (Management & Disposal) Act 
No.XIII of 1975 in the Court of Chairman Evacuee Trust Board, 
Govt. of Pakistan but he could not substantiate his claim that the 
property in dispute was evacuee and that he was its lawful 
allottee. Even entries in naqsha taqseem do not support the 
contention that the property in dispute has ever been allotted to 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
10
the respondent. The evidence led in this behalf overwhelmingly 
proves that the property is Evacuee Trust Property ever since late 
30s. The surprising part of the litigation is that the respondent 
himself invoked the jurisdiction of the Evacuee Trust Board for its 
verdict about the nature of the property but when the verdict 
given by the Board turned against him, he turned the table on the 
Board and proceeded to question its verdict through a revision 
petition. Somehow he withdrew it and instituted a civil suit 
questioning the verdict of the Chairman Evacuee Trust Board 
notwithstanding such verdict being amenable to the revisional 
jurisdiction of the Federal Government in the hierarchy established 
under the Act and then Constitutional jurisdiction of the High 
Court, could not have been challenged in the Civil Court 
especially when its jurisdiction was barred by Section 14 of the 
Evacuee Trust Properties (Management and Disposal) Act, 1975.  
11. 
 
Now the question arises where jurisdiction of the Civil 
Court is expressly barred and the Court exercising jurisdiction 
under Section 8 of the Evacuee Trust Properties (Management 
and Disposal) Act is a Court of Plenary Jurisdiction in view of the 
provision contained in Section 21 of the Act, for the purposes of 
deciding the question, whether an evacuee property is attached 
to charitable, religious or educational trust or institution, how 
could a Civil Court sit in judgment over the judgment of the 
Chairman Trust Board when the law has blessed it with finality and 
made it immune from being questioned in any Court. In the case 
of Evacuee Trust Property Board. Vs. Mst. Zakia Begum and others 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
11
(supra) this Court after analyzing the relevant provision of the 
Evacuee Trust Properties (Management and Disposal) Act, held 
that the Chairman Evacuee Trust Property under Section 8 of the 
Act alone is competent to decide whenever any question arises 
as to whether an evacuee property is attached to charitable, 
religious or educational trust or institution or otherwise and that 
proceeding before the Civil Court shall be coram non judice. The 
same view was reiterated and reaffirmed in the case of Evacuee 
Trust Property Board through Deputy/Assistant Admiistrator, 
Evacuee Trust Property, Peshawar. Vs. Ali Bahadur (PLD 2011 SC 
126) by holding as under :-  
“Analyzing section 14 ibid, it is unambiguous that 
the jurisdiction of the civil Courts has been 
barred with respect to any matter which an 
officer appointed under the Act is empowered 
to determine; such jurisdiction is also ousted to 
grant and issue an injunction, process or order in 
respect of any action taken or to be taken by 
such officer in exercise of any power conferred 
by or under the Act. Undoubtedly, the Chairman 
of the Evacuee Trust Property Board is an officer 
within 
the 
contemplation 
of 
the 
section. 
Therefore, in order to settle the question about 
the ouster of jurisdiction it seems expedient to 
examine, what was the proposition involved in 
the suit and whether such a question was 
determinable by the Chairman or not:  In this 
respect, it is foundational to evaluate the claim 
of the respondent in his suit/plaint; on the perusal 
thereof it is vivid that the respondent is seeking a 
declaration that the suit property is his exclusive 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
12
ownership and is not an evacuee trust property, 
consequently 
the 
appellant 
should 
be 
precluded from interfering into his ownership 
rights and apprentices thereto; the appellant in 
defence joined issue with the respondent on 
these factual aspects and claimed the suit 
property being an evacuee trust property and it 
is on this account that the jurisdiction of the 
Court was challenged. Therefore, the key issue 
before the Court would be whether the property 
is an evacuee trust property otherwise? Now 
when the provisions of section 8 of the Act are 
adverted to, it specially mention “if a question 
arises whether an evacuee property is attached 
to a charitable, religious or educational trust, or 
not it shall be decided by the Chairman” 
meaning thereby that notwithstanding whether 
a declaration in terms of section 8 has been 
made or not by the Chairman, yet even if a 
question has arisen at any point of time about 
the status of the property it shall be the 
Chairman alone who under the Act shall be 
competent and empowered to determine and 
decide the question and the Court in view of the 
bar contained in Section 14 shall have no 
jurisdiction in the matter”.   
 
12. 
 
The argument that an isolated entry in the revenue 
papers showing it to be Gaoshala Society Bar cannot make it 
charitable in the absence of any document showing its dedication 
to charitable, religious or educational purposes is not correct as an 
argument of similar tenor was turned down by this Court in the 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
13
case of Evacuee Trust Property Board. Vs. Rahim Khan and 3 others 
(1989 SCMR 1605), by holding as under:-  
“The question of law noticed in the leave 
granting order ‘whether it is necessary to 
produce the deed of trust in order to show 
the real purpose of the trust’ has not been 
pressed as there is no representation from the 
side of the respondents. We may, however, 
observe that according to section 407 of the 
Principles of Hindu Law by D.F. Mulla (10th 
Edn.) no writing is necessary to create an 
endowment except where the endowment is 
created by a will, if the case is governed by 
the Indian Succession Act, 1925. The learned 
author in the commentary, has also referred 
to case law holding that the dedication of 
land for public temple is not a gift within the 
meaning of section 122 of the Transfer of 
Property Act, and, consequently, does not 
require to be effected by a registered 
instrument. We, are therefore, of the firm view 
that the evidence of extract from the 
Property Register showing the property to be 
in the name of the temple is sufficient for the 
purpose of holding that it is attached to a 
religious trust. It may be clarified, however, 
that while giving effect to this finding the 
relevant 
authorities 
will 
take 
into 
consideration the provisions of section 10 of 
the Evacuee Trust Property (Management 
and Disposal) Act, 1975 (Act XIII of 1975) 
under which property utilized bona fide 
against the satisfaction of verified claims in 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
14
respect of which P.T.D. were issued prior to 
June, 1968 have been validated and saved”.   
 
13. 
 
When we analyze this case in the light of the 
paragraph quoted above, it appears to be better than the case 
cited above, on the following grounds :-  
 
a) 
that this property has been entered as 
Gaoshala Society Bar ever since 1938-1939 to 
1960-1961; 
b) 
that nothing has been brought on the record 
to show that it has ever been individual 
property;  
c) 
that it has never been in possession of the 
respondents ever since its allotment; and  
d) 
that it has been under the control and 
management of the Auqaf Department ever 
since 1964-1965, which conclusively prove 
that the property being evacuee has been 
attached 
to 
charitable, 
religious 
and 
educational trust or institution.  
 
Above all else the declaration given by the Chairman 
Evacuee Trust Board which went unchallenged and thus attained 
finality prove that the property in dispute is evacuee trust property 
from whatever angle it is looked at. Reference to the case of 
Muhammad Jamil Asghar. Vs. The Improvement Trust, Rawalpindi 
(supra) has no application to the case in hand when the facts 
averred in the application moved by the respondent Ghani raised 
the question whether the property in dispute is attached to a 
charitable, religious or educational trust or institution etc., or not. A 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
15
reference to the case of Federation of Pakistan through Secretary, 
Ministry of Religious Affairs/Minority Affairs, Government of 
Pakistan, Islamabad. Vs. Mufti Iftikhar-Ud-Din and another (supra) 
too has no relevance to the case in hand as the provisions of 
Sections 
8, 
10 
and 
21 
of 
the 
Evacuee 
Trust 
Properties 
(Management and Disposal) Act, 1975 have not been held to 
have contained anything contrary to the injunctions of the Holy 
Quran and the Sunnah of the Holy Prophet (PBUH), and that the 
Courts already in place can continue, as final order so passed by 
the Federal Government is assailable before the High Court in 
exercise of its Constitutional Jurisdiction. The relevant paragraph is 
thus reproduced for the facility of the reference which reads as 
under :-  
“The providing of right of appeal against 
order of the Chairman passed under Section 
8 of the Act XIII of 1975 should have been 
provided to comply with the requirements of 
principles of administration of justice in Islam 
as immunity sought to be granted to such an 
order by providing an inadequate remedy of 
revision 
would 
be 
repugnant 
to 
the 
injunctions 
of 
Islam. 
The 
appellant 
is 
accordingly directed to suitably amend the 
Evacuee Trust Properties (Management and 
Disposal Act, 1975 (Act XIII of 1975) by 
inserting a provision providing right of appeal 
against the order passed by the Chairman 
under Section 8 of the Act XIII of 1975. Such 
an appeal can be provided to lie before the 
High Court in line with the recourse adopted 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
16
in the Displaced Persons (Compensation and 
Rehabilitation) Act, 1958 and the Displaced 
Persons (Land Settlement) Act, 1958. If the 
declaration as to the nature of the property 
made by the Chief Settlement Commissioner 
and later by the Chairman could be made 
scrutable through an appeal to the High 
Court, no possible can be raised to the 
providing of the same remedy now under 
Act XIII of 1975. It is also to be noted that 
against the orders passed on other matter by 
the officers appointed by the Board, appeal 
has been provided to the higher officers of 
the hierarchy including the Chairman and 
against orders so passed the revision lies to 
the Federal Government. The said course of 
action can continue as before, as final order 
so passed is further assailable before the High 
Court 
by 
invoking 
the 
Constitutional 
jurisdiction vesting in it under Article 199 of 
the Constitution and a further petition for 
leave to appeal before the Supreme Court 
under Article 185 of the Constitution of Islamic 
Republic of Pakistan, 1973. The remedies, so 
provided, considering the nature of the 
legislature are in such matters sufficient and 
adequate. The amendment directed in the 
above terms shall be made in Act XIII of 1975 
by the appellant by the 30th July, 1999”.    
 
The paragraph reproduced above is clear and unambiguous. 
Neither the judgment rendered in the case of Federation of 
Pakistan through Secretary, Ministry of Religious Affairs/Minority 
CIVIL APPEALS NO. 1540 and 2106 OF 2006 
 
17
Affairs, Government of Pakistan, Islamabad. Vs. Mufti Iftikhar-Ud-
Din and another (supra) nor the paragraph reproduced above in 
any way leaves any scope for Civil Court to assume jurisdiction in 
the matters falling within the purview of Sections 8, 10 and 14 of the 
Act. The fora below as well as the High Court laboured under 
misconception to circumvent the application of the Act to justify 
assumption of jurisdiction which is clearly barred.  
14. 
 
When preponderance of documentary as well as oral 
evidence on the record and verdict of the Chairman Evacuee 
Trust Board prove that the property in dispute is an evacuee trust 
property, the appellants and respondents in Civil Appeal No. 1540 
of 2006 are left with no locus-standi much less a cause of action to 
lay their hand on its ownership in any form and in any forum.  
15. 
 
As a sequel to what has been discussed above, appeal 
filed by the Evacuee Trust Board is allowed, the impugned 
judgments are set-aside while the suit pending in Civil Court in 
respect of property in question together with the application under 
Section 12(2) CPC is dismissed. Needless to say that where the 
basic order in favour of respondent No. 1 has been declared void 
ab-initio, entire superstructure raised thereon would automatically 
collapse.        
Judge 
 
 
Judge 
Announced in Open Court at Islamabad on  13.01.2016. 
 
 
 
 
 
 
 
 
Judge  
‘Not Approved For Reporting’ 
M. Azhar Malik\ 
