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Miscellaneous Civil Appeal No. 111 of 1973, decided on 5th December 1974.

O. XL, r. 1‑Receiver, appointment and removal of‑Appellant indisputably owner of land in suit, prima facie leasing out land to respondents for specific period without any power of subletting and respondents subletting land‑Appointment of receiver, in circumstances, held, in interests of justice to safeguard interests of both parties Removal of receiver, continuing in possession at all stages‑Not justi fied.

Vanibai and another v. Republic of Pakistan and 36 others P L D 1970 Kar. 42 distinguished.

Lala Roshan Lal and others v. Ch. Muhammad Afzal and others P L D 1949 Lah. 60 ref.

Naimuddin for Appellant.

Abdul Jabbar for Respondents.

Date of hearing : 5th December 1974.

This appeal under Order XLIII, rule 1 (s), C. P. C. is directed against the judgment of learned District Judge, Tharparkar dated 7‑9‑1973, whereby he rejected appellant's application for appointment of a receiver with regard to disputed land measuring 74.37 acres situated in Deh 376 Taluka Digri, District Tharparkar.

2. The facts briefly are that:‑ The appellant who is the owner of the land in dispute gave the same on lease to respondent No. 1 Zamir Ahmed for a period of three years commencing from Kharif 1970‑71 @ Rs. 50 per acre. Lease money for one year was paid and the remaining was to be paid in advance at the start of each succeeding years with a condition that lease will be terminated if any default was made. No lease agreement although alleged to have been signed by the parties, bad been produced by either parties.

3. It transpires that the respondent No. 1 after one year sublet the land in dispute to respondent No. 2 for 2 years on receiving profit of Rs. 5 per acre whom he put into possession. Then respondent No. 2 the sub‑lessee, however, took respondent No. 3 as his partner. As it came to the knowledge of appellant that respondent No. 1 was claiming himself as owner and has leased out the land such for further three years commencing from Kharif 1973‑74 to Rabi 1975‑76 to the respondents Nos. 4 and 5 at the rate of Rs. 3,300 as lease money and a lease deed wag got registered in the office of the Sub‑Registrar, Jamesabad where respondent No. 1 has shown himself as owner which is not disputed, he therefore filed a suit in the Court of learned Civil Judge, Mirpurkhas claiming various reliefs including possession and mesne profits etc. and at the same time he made an application for appointment of a receiver pending disposal of the suit. Learned Civil Judge, Mirpurkhas on 25‑1‑1973 appointed one Mr. Qaseem, Advocate as receiver for the land, Annex. B'. The receiver took possession of the land, submitted a report to the Court as well mashirnama dated 2‑2‑1973, Annexs. C & D. The respondents later on contested appointment of receivership. Learned Civil Judge, however, on 21‑4‑1973, returned the plaint to be presented before the proper Court as he had no pecuniary jurisdiction. The plaint was presented to the learned District Judge, Tharparkar and a fresh application for appointment of receiver was moved. This application was accepted with orders that as "Receiver has already taken over and is managing the property. Let status quo be maintained till 30‑4‑1973", objections were filed by the respondents on the ground that respondents 4 and 5, however, obtained the land for further 3 years from Hamid Attorney of appellant and that there was oral lease from attorney for 6 years, although that did not deny the execution of sub‑lease by respondent No. I in favour of respondents Nos. 4 and 5, the trial Court however, allowed the continuation of the receivership by various orders until he passed the above‑stated impugned order.

4. Along with the appeal an application for maintaining status quo was filed with regard to continuation or appointment of receiver by the appellant which was allowed by this Court at the time of admission with orders that in the meantime receiver appointed earlier will continue.

5. I have heard Mr. Naimuddin, Advocate for the appellant and Mr. Abdul Jabbar, Advocate for the respondents. Learned counsel for the appellant argued amongst others that the learned trial Court erred in holding that it would not be just and convenient to appoint receiver because the ownership of appellant is admitted as well the grant of lease for 3 years to respondent No. 1 who had no power to sub‑lease to other party nor any other sub‑lessee could in turn bring another partner that the terms of the lease has already expired, therefore, respondent No. 1 as well as subsequent sub‑lessees become trespassers, that the document of 3 years lease executed by the appellant to the respondent was in possession of the respondent which was deliberately withheld and that nor any other document produced by the respondent for obtaining the lease as alleged for sit years from Attorney of the appellant and that the appellant has raised plea of possession, waste and damage to the land and the rights which were not considered and lastly that the possession of the suit land was with the receiver as would be evident from Annexs. B, C, D, E, F, G, 11, 1, J and K', and that the trial Court has erred in holding that the possession was with the respondents Nos. 4 and 5 as at no stage it was ever ordered that the possession to be handed over to any of the respondents. In this regard learned counsel for the appellant relied on Vanibai and another v. Republic of Pakistan and 36 others (P L D 1970 Kar. 42), wherein basis for appointment or otherwise for receivership were held to be: whether it is just and convenient to appoint the receiver or not The application was not granted only on the ground that the suit was for declaration and that the plaintiffs were the owners of the land but the defendants on the other hand were in possession of the land for number of years and that since the suit was neither for mesne profits nor for damages nor for compensation for use and occupation of the land. But in this case it was pointed out by counsel that the suit was for declaration, compensation, possession and damages as well as mesne profits; besides the receiver continues to be in possession and management of the property. In support of his argument counsel referred me to a report of the receiver submitted on order of this Court dated 8‑4‑1974, wherein he has stated that he was appointed receiver by learned Joint Civil Judge, Mirpurkhas by order dated 27‑1‑1973, he took possession of the suit land on 2‑2‑1973 and on 15‑9‑1973 he was informed by the learned Sessions Judge that he may continue as receiver of the said land due to orders of the High Court and that he continues to be in possession of the suit land and that at no stage he handed over possession to any party after he took over on 2‑2‑1973. That he supplied cotton‑seed and fertilizer to three haris during Kharif 1973 and the remaining undertook to use their own cotton‑seed and fertilizer during Kharif 1973 due to lack of funds with him and that he had received Rs. 200 from the Court of learned Joint Civil Judge, Mirpurkhas for initial expenses and he had furnished accounts of this amount in February 1973, and that thereafter the crop was given by the learned District Judge to the defendants by consent of plaintiff on former's furnishing security and that he had given account from time to time up to February 1974. Counsel next relied on Lala Roshan Lal and others v. Ch. Muhammad Afzal and others (P L D 1949 Lah. 60), wherein it was held by Mr. Justice Cornelius that:

"For the purposes of deciding whether or not a receiver should be appointed, under O. XL, r. 1, Civil Procedure Code, it is necessary to arrive at a conclusion whether such an appointment will be just or convenient, and in the present case, the point relates more to the justice of the case than to the mere convenience of the Court and, therefore, it is necessary to reach a finding upon that might be described as the chances of the plaintiff's success. Whether or not the plaintiff succeeds will be decided at the trial, but at this stage I cannot avoid forming an opinion upon the materials before me as to the probability or otherwise of the plaintiff's success, but such an opinion is of course not to be regarded as in any sense binding upon the Court of first instance. Upon the material before me relative to the acts alleged on the part of Din Muhammad and Ghulam Mustafa and bearing in mind the stipulation in the deed of waqf, I am of the opinion that the plaintiff has a prima facie case for being regarded as the rightful Mutwalli. This is so far as the contest lies between him on the one side and Din Muhammad and Ghulam Mustafa on the other, for the position of Mutawalli, but as was brought out in the Bombay case the right of suit for restoration of waqf properties which have been illegally alienated does not vest exclusively in the Mutawalli but may be exercised also by a person situated as is the plaintiff namely belonging to the family to which the benefits of the waqf office of Mutawalli exclusively belongs. Such a suit would, of course, not be directly for possession of the suit properties, but for restoration to the Waqf of the alienated properties and it is evident that in the suit of the latter kind, the appointment of a receiver would be eminently just, provided. the case were as it is here, that the alienees had been finally held not to have any right, whatsoever, to continue in possession of the alienated property. The position of the present alienees, after the decision of the Privy Council in the case, appears to me to be no better than that of tenants at sufferance."

There is some force in the arguments of the learned counsel for the appellant.

6. Learned counsel for the respondents when questioned stated that it was the respondent who was in possession. When it was pointed out to him the report of the receiver as well as various orders of the Court below passed from time to time that the respondent was not in possession of the property he could not make any worthwhile answer to that except that he insisted that it was the respondent who was in possession. I am afraid I cannot accept this position. It is clear from the report of the receiver as well as various orders of the Court below that the receiver since his first appointment continues to be in possession and management of the property till the last order passed by this Court referred earlier. As to the merits of the case he cited no judgment to the contrary nor advanced any worthwhile arguments in reply to the contentions raised by counsel for appellant, particularly, on the point that how the respondent being a lessee himself could sublet the land in absence of any specific agreement to the contrary. All he submitted was that there was oral agreement wherein appellant's Attorney leased out the land on behalf of the appellant to the respondents for six years and that it was the attorney who was receiving the lease money on behalf of the appellant. Prima facie, this argument is not supported by facts on record. The argument of the learned counsel for the respondents is, however, weakened by Annex. L' which is an application by the respondents moved in the Court of learned District Judge dated 8‑9‑1973, wherein it is stated that Mr. Qaseem Ahmed, Advocate was appointed interim receiver of the suit land and status quo was maintained up to 23‑4‑1973 and that after rejection of the appellant's application services of Mr. Qaseem Ahmed the receiver may be terminated. Besides from the counter‑affidavit the contention of the appellant that the land was sublet by respondent No. 1 to other respondents without his permission and received the money on that behalf beyond the stipulated period finds support from the counter‑affidavit of respondent No. 5 as well.

7. As the main dispute is pending before the trial Court I refrain from making detailed observations with regard to merits of the case, but prima facie it appears, for the reasons given above, that the appellant being owner, which is not in dispute, had leased out the land to the respondents for specific period without any power of subletting the same, as has been done in this case, to other person. This question, however, to be decided on documentary evidence or others before the trial court.

The receiver has already been appointed who continues up to now in possession and his appointment was in the interest of justice to safeguard the interest of both the parties. A lessee cannot have a better right than the owner and therefore, the right of the owner also has to be protected.

8. For these reasons, I am of the opinion, that the removal of the receiver who continues to be in possession at all stages is not justified in the interest of justice as well as parties. The result is, I accept this appeal with costs and set aside the impugned order of learned District Judge dated 7‑9‑1973.

S. A. H. Appeal accepted.

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