1. ' GHULAM RABBANI, J.--- This civil revision application is directed against the order, dated 6-1-2005 passed by learned Additional District Judge, Naushahro Feroze, whereby Civil Miscellaneous Appeal filed by the applicant has been dismissed and the order, dated 15-12-2004 passed by learned Senior. Civil Judge, Naushahro Feroze appointing Mukhtiarkar (Revenue), Naushahro Feroze, as Receiver for the management, protection and preservation of the land in question, has been maintained.
2. ' The relevant facts noted for disposal of this revision application are that respondent No,1, Qabool Ahmed instituted on 3-12-2003 before the Senior Civil Judge, Naushahro Feroze, a suit for declaration, possession, injunction, mesne profit and perpetual injunction. In brief, the case of the said respondent was that his father (Nawab. Khan) owned and possessed land admeasuring 99- 39 acres, in Deh Changul, Taluka and District Naushahro Feroze which, among others, included Survey Numbers 500/2 area 4-00 acres 506/1 and 4 area 8-00 acres total 12-00 acres. The aforementioned two survey numbers formed subject-matter under dispute (hereinafter be referred to as suit-land). After death of his father, the suit-land came to his lot as a result of private partition between him and his sister and he used to enjoy its possession and pay land revenue. In January, 1998 defendant No, l/apploicant (to be referred to as applicant) silently took over possession of suit-land and on enquiry, Tapedar of the Beat intimated him that he (applicant) happened to cultivate the suit-land, enjoyed its produce and used to pay land revenue against receipts. The above suit was contested by applicant by filing on or about 13th January, 2004 a written statement. While the said suit was pending, respondent No,1 filed on 7th January, 2004 an application under Order XL, rule 1 read with section 151, C.P.C. For appointment of an officer of the Court to take over the possession of the suit-land from applicant as a Receiver. Applicant contested the said application by filing objection/counter-affidavit. Ultimately, learned trial Court heard the above application and passed an order dated 15-12-2004 whereby, appointed the Mukhtiarkar (Revenue), Naushahro Feroze as a Receiver. Feeling aggrieved, applicant challenged the said order by preferring an appeal which was dismissed by learned Additional District Judge, Naushahro Feroze vide order impugned herein.
3. ' Mr. Bhajandass Tejwani, learned counsel for the applicant argued that applicant was owner of the suit-land having inherited the same from his father Arbab son of Qabool Ahmed Dahri, who was granted the said land by Barrage Department or around 1934 which facts were substantiated by the Rubkari, dated 14-11-2003 issued to respondent No,l. He further argued that father of the applicant and after his death, the applicant himself remained in cultivating possession and enjoyment of the suit-land and that the possession of applicant over the suit-land was admitted by respondent No,1; at least,- for six years next before the institution of the suit by alleging that the former had silently taken over. In support of his arguments Mr. Tejwani placed his reliance on copies of two Forms-A bearing No,B-175-1616 dated 13-3-1934 and 2418 dated 12-1-1935, T.O. Form and letter/Rubkari No,919 dated 14-11-2003 issued by Executive District Officer (Revenue), Naushahro Feroze in order to show that the suit-land stood granted to applicant's could have been appointed by learned trial Court only when there was an father by Barrage Department. Mr. Tejwani contended that Receiver allegation of waste, damage, malversation in respect of the suit-land, which admittedly, was in possession of applicant, and since there was no such allegation, learned trial Court, patently, fell in error and passed an illegal and unlawful order allowing the application of respondent No,1 for appointment of receiver. To strengthen his arguments Mr. Tejwani referred to the application for appointment of Receiver and the affidavit furnished in support thereof in order to show that no such ground was taken by respondent No,
1. He placed reliance on case of M.
4. Attaur Rehman Alvi v. Inamur Rahman PLD 1974 SC 54, the case of Iqrar Muhammad Siddiq v. Mst.
5. Shahid Zareen PLD 1997. Kar. 409 to support his contentions. He also referred to the case of Muhammad Mostkeem and others v. Abdullah Jan 1992 CLC 2469 and the case of Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others PLD 1976 Kar. 181 to contend that the order of appointment of Receiver is to be passed very sparingly being a harsh remedy in the extra-ordinary and exceptional circumstances which were totally nonexistent in the present case.
6. Further, Mr. Tejwani, contended that since no prayer in the shape of appointment of Receiver was made by respondent No,1 in his plaint, learned trial Court could not have considered and granted such relief on an interlocutory application. In support of his plea, he referred to the case of Muslim Commercial Bank Limited v. Panama Trading Co. (Pvt.) Ltd. 1998 M LD 1844.
7. ' Lastly, Mr. Tejwani argued that learned Appellate Court failed to advert to the above factual as well as legal position and erred in maintaining an illegal and unlawful order of learned trial Court and thereby, Appellate Court, too, committed an illegality.
8. ' On the other hand, Mr. Abdul Nabijvl. Memon, learned counsel for respondent No,1 argued that the suit-land was owned by respondent No,1 whose name appeared as owner of suit-land as per Entry No,11 in Mutation Register of Deh Changul Taluka Naushahro Feroze and it was incorrect that applicant was owner of the suit-land as claimed by him. He referred to a certified true copy of such entry issued by Revenue Officials made available on record. Mr. Memon argued further that as per Taluka/village record neither father of the applicant nor the applicant was shown as owner of the suit-land; he had no right to remain in possession and enjoyment of the suit-land and appointment of Receiver was rightly ordered. He contended that respondent No,1 had also mortgaged the suit-land with erstwhile Agricultural Development Bank of Pakistan, which was subsequently redeemed vide certificate of release of the charge issued under letter No,NEZ/2000/(049992)/671 dated 8-8-2000/4-11-2001 issued by Manager, Agricultural Development Bank of Pakistan, Naushahro Feroze, prima facie establishing that the applicant was - in possession of the suit-land at that time and, he was considered to be entitled to mortgage the same against the loan/financial accommodation by a Government Sponsored Loan giving Agency. He however, admitted that applicant was in possession of the suit-land since January,.
9. 1998 as per own pleadings of the respondent No,1, but he stressed that the mere fact that applicant was in possession of the suit-land was no bar to the appointment of the Receiver, as respondent No,1 had a substantial interest in the suit-land requiring protection and preservation pending final decision as to his rights. He referred to the case of Syed Naimat Ali and others v. Dewan Jiram Das and others 1982 SCM R 443, the case of Aftab Ahmed Mufti and another v. Mst. Seema alias Zareena 1988 CLC 1567 and the case of Kathiawar Cooperative Housing Society Ltd. v. Mecca Masjid Trust and 9 others PLD 1994 Kar.
375. In the end Mr. Memon did not dispute that the Rubkari dated 14-11-2003 was issued by learned Executive District Officer (Revenue), Naushahro Feroze showing grant of suit-land to father of applicant and possession of applicant.
10. ' Mr. Muhammad Mahmood S. Khan Yousifi, learned Assistant Advocate-General supported the two orders passed by the learned Courts below. He argued that since the name of the respondent No,1 appeared in Revenue Record as owner of the suit-land a prima facie case was made out in his favour.
11. ' I have given due attention to the arguments of the learned counsel for the parties. I have gone through the papers made available before me and I have also gone through the case-law referred to by both the learned counsel for the parties. This case appears to have a checkered history. The documents, such as "A" Form and T.O. Form which relate to the grant of the suit-land (to show title of applicant) have been produced by the applicant to indicate that applicant's father was grantee of the suit-land while his name or his father's name is not entered in Revenue Record. The existence of above documents of grant of suit-land to the father of applicant and possession of suit-land with applicant has been admitted by the Revenue Officer of higher hierarchy such as Executive District Officer (Revenue), Naushahro Feroze vide Rubkari, dated 14-11-2003 issuance whereof in the name of respondent No,1, which has not been denied by Mr. Memon learned counsel for respondent. On the other hand no title documents have been produced by respondent No,1 as regards ownership of the suit-land but an entry in the Revenue Record is available in his name.
12. Right of the ownership of any property -depends entirely on the title i,e, the source of the acquisition of the right while entry in the Revenue Record is not the conclusive evidence of the right of the ownership. It may be noted that Entry in Revenue. Record can only be used for fiscal purpose and is not a title deed. Such Entries could neither create nor extinguish title to the property.
13. Reference may be made, if so required, to the case of Muhammad Ali and 25 others v. Hassan Muhammad and 6 others PLD 1994 SC 245. Admitted fact is that on the own saying of respondent No,1, the applicant was in possession of the suit-land since January, 1998 i,e, for about 7 years by now and the above mentioned Rubkari also shows that before learned Executive Officer, respondent No,1 had admitted in open Court that applicant was in possession of suit-land. If the admission of respondent No,1 in his plaint is considered then also what emerges is that he remained silent for 6 years and was only enabled to institute the suit for possession in the last month of 2003 letting applicant enjoy during all this period of time its possession and benefits. No satisfactory reason was assigned as to why respondent No,1 remained inactive for all these years. I have gone through the application as well as affidavit filed by respondent No,1 for appointment of the Receiver. Respondent No,1 simply stated in the affidavit furnished in support of his application that appointment of Receiver was being asked for the purpose of preservation of the subject- matter of the litigation pending judicial determination rights by the parties. Nowhere, in the said application or affidavit, I find any allegation of waste, damage and/or malversation of the land in question on the part of the applicant. No material was placed on record to indicate that the suit property was in danger of being wasted or damaged. It may be stated that it is incumbent upon the parties asking for appointment of Receive to show of all necessity, that the property in the hands of other party is in danger of being wasted. Reference may be made to the case of Mst.
14. Muhammad Bibi (supra) and the case of Iqrar Muhammad Siddiqui (supra).
15. ' Reading of the plaint in the suit filed by respondent No,1, though, on its first page captioned it to be the suit for declaration, possession, injunction, mesne profit and perpetual injunction yet nowhere in the prayers, a declaration has been sought about ownership of suit-land. Instead, applicant has, in his written statement, challenged the ownership of respondent No,1 over the suit-land. In case of Atta-urRehman Alvi (supra), it has been observed that until the dispute (title to the property therein) was decided, he (petitioner therein) could not ask for Receiver to be appointed and the person bona fide in possession deprived of the properties. In the instant case, applicant claims to be in possession of suit-land on the basis of documents of the grant made in the year 1934 which fact is supported by the above named Rukbari dated 14-11-2003 issued by Executive District Officer (Revenue), District Naushahro Feroze. Accordingly, in my view, applicant could not be deprived of his possession of the suit-land, which is admitted by respondent No,l.
16. ' I have gone through the case-law referred to by Mr. Memon. In the case of Aftab Ahmed Mufti and another (supra) it is held that a Court will appoint a Receiver of the disputed property if the Court reaches the conclusion that it is just and convenient to order so and to persuade the Court to reach this, conclusion the plaintiff has to make out a prima facie case that he owns the suit property or has a substantial interest therein which requires protection or preservation pending final determination of the rights of parties in the suit and because of expected waste or peril to such property, the right or interest of plaintiff cannot be preserved or protected without appointment of Receiver. I have already stated that no title document to base the ownership thereon has been produced by respondent No,1. Mr. Memon when asked showed his inability to produce any of such document before me, as well. Respondent No,1, at the cost of repetition, it may be, mentioned, has not even asked for declaration of his ownership over the suit-land, as stated hereinabove. Neither there is any mention that because of expected waste or peril the suit property of respondent No,1 cannot be protected or preserved without appointment of Receiver. In case of Sayed Niamat Ali and others (supra), cited by Mr. Memon, a Receiver was appointed by High Court on the application of respondent therein on the ground that the petitioners therein, who purchased the land from father of said respondent, had failed to pay the remaining amount of consideration and thereby failed to perform their part of agreement and also there was an allegation that they were cutting trees from the disputed land hence the apex Court observed that the High Court was amply justified in appointing a Receiver so as to protect the property from destruction during pendeney of the revision application and dismissed the petition. In another case of Kathiwar Cooperative Housing Society Ltd., cited by Mr. Memon, the said Society had claimed ownership of mosque, which, according to their contention, was built by them; but, subsequently, possession thereof was taken over by respondents Nos.2 to 9 therein, later getting a trust registered. In this case, of course, it was first observed that "the rule which emerges is that an appointment of interim Receiver is to be made, if it be just and convenient so to do. Mere fact that the defendant happens to be in possession would be no bar to the appointment, if the plaintiff, on his part, shows an immediate right to possess. Delay, if explainable or if not degenerating into inequity, depending upon the circumstances of each case, should in itself be no insurmountable hurdle to such an appointment" and then it was held that "Be that as it may, it would be counter-productive, at this stage, to interfere with or supplant the concurrent orders of the two Courts below, particularly when such are based upon the exercise of discretion, even though there may have been some errors in that exercise. Needless to restate that it is only jurisdictional errors, which can be corrected in revisional jurisdiction". The application in the cited case was however, disposed of by consent as learned counsel had agreed that "without disturbing the current state of affairs, it would be proper to issue direction to the learned Judge of the trial Court to dispose of the suit pending before him as expeditiously as possible".
17. 'In the instant case, however, as stated above, the facts and circumstances are distinguishable.
18. Respondent No,1 has admitted, at least, the possession of applicant over suit-land since 1998 letting himself remain inactive for recovery thereof; and without furnishing any explanation about his silence for such a pretty long time he has sought appointment of Receiver. The applicant, on the other hand claims ownership beside the possession of suit-land on the basis of documents referred to above. Existence of such documents has been admitted by higher Revenue Authority. In my view, the cited cases are therefore, of no assistance to respondent No,1.
19. ' Considering the above facts, and circumstances and the. Case-law, I am of the considered view that both the learned trial as well as Appellate Court have not exercised their jurisdiction in accordance with law. Consequently, I allow this civil revision application, set aside the impugned orders and direct the learned trial Court to proceed with the matter in accordance with law.
20. ' Civil Revision Application No,13 of 2005 stands disposed of in the above terms.