This is an appeal under Order XLIII, rule 1, C. P. C. From an order of the trial Court refusing to appoint a receiver. It was argued for two days in which counsel for the parties narrated complicated facts covering a period of about twenty years.
2. It will be proper to briefly refer to the chequered history of this litigation in order to understand the full implications of the contentions of the parties. The dispute relates to agricultural land which is situated in Delis 1 and 2 Dim of Sinjoro Taluka and District Sanghar. It is not clear as to what is the precise area of the land in which the appellants are interested. Counsel for the appellants said that it was about 300 acres. Parumal who is said to be the husband of appellant No. 1 and father of appellant No. 2 applied to the Custodian Mr. Akbar Hussain in 1950 for a declaration that he was a non-evacuee person and stated in support of his claim that 500 acres of land belonged to him individually as self-acquired property and that he was childless. The object obviously was to avoid the possibility of an investigation into the interests of the other members of his family if it was a joint Hindu family. It appears however, that be had two brothers by the names of Moolchand and Bheemrajmal and that at least Bheemrajmal had left a son by the name of Heranand, but Parumal's statement was believed by Mr. Akbar Hussain who referred the matter to the Central Government under section 53 of Ordinance XV of 1949 with the result that the Central Government declared Parumal to be a non-evacuee person. Thereafter, he left for India and died at Joadpur in 1951. On the 1st of May 1954, the status of his property was considered by an Assistant Custodian, Nawabshah who declared it to be evacuee property. In June 1954, Shirimati Vanibai and Pritamdas claimed to be his heirs on the basis of a certificate which was granted to them by a Mukhtiar kar of Shahdadpur and Sinjhoro. Vanibai claimed to be the widow of Parumal and Pritamdas to be his son. According to Vanibai she had given birth to Pritamdas in 1947. In August 1954, Vanibai made an apple--cation to the effect that she had come to know that her property was being erroneously treated as evacuee property. The application was made under section 18 of Ordinance XV of 1949 which was considered by an Assistant Custodian and a declaration was granted that she and her son were non-evacuee persons. The order was made on the 5th of April 1958. But in 1959, the property which is the subject-matter of this appeal was allotted to respondents Nos. 5 to 37.
3. In 1960, Vanibai and her son filed a suit for a declaration that the Rehabilitation Authorities had no jurisdiction to allot the land which belonged to them. The suit was decreed on the 15th of December 1961 and the decree-holders applied to the Assistant Rehabilitation Mukhtiar kar for possession of the land. The respondents applied under section 11(4) of Rehabilitation Act, 1956, to the Deputy Rehabilitation Commissioner which application was treated as an appeal and was dismissed, with the direction, however, that their possession should remain undisturbed until final decision. The decree-holders therefore, filed Writ Petition No. 623 of 1962 and asked for directions to the Rehabilitation Authorities to restore possession of the land to them. The petition was admitted by the Court on the 20th of March 1963 and was still pending when on the 15th of February 1965, Quddus Bihari made an application to the Custodian alleging in it that Vanibai and her son were playing fraud on the authorities. During the pendency of that applica--petition before the Custodian the Writ Petition was heard on the 24th of February 1965 and was disposed of with the consent of the allottees. A direction was given that the application of Vanibai and Pritamdas for restoration of possession of the land which was pending before the Rehabilitation Authorities be disposed of in accordance with law and that the allottees be given some other land. Nothing was said in the order as to whether the land was to remain with the allottees or not, if the application of Vanibai and her son for restoration of the land, which was to be decided according to law, was dismissed.
4. The application of Quddus Bihari was forwarded by the Custodian for enquiry and report to the Additional Custodian. This order was made in March 1965. In May 1965, Vanibai applied to the Deputy Collector and D. R. C., Shahdadpur for compliance with the order of the High Court. During the pendency of that application, the report of the Additional Custodian dated the 27th of May, 1965 was submitted to the Custodian. It made the following disclosures:
(i) Parumal had stated before Mr. Akbar Hussain on the 8 of February 1950 that the land was his self-acquired property and measured 600 acres whereas in the Writ Petition is stated that the property was ancestral and the family was joint until partition took place and 300 acres fell to his share.
(ii) He had stated on the 8th of February 1950. That he had no child but now Vanibai claimed that Pritamdas was his (Parumal's) son and was born in 1947. No evidence was produced to prove these allegations.
5. While the above report was pending before the Custodian, Vanibai was pressing for restoration of land to her and succeeded on the 16th of July 1965 on getting their allotments which were existing in favour of respondents Nos. 5 to 37 cancelled by an Assistant Rehabilitation Mukhtiar kar with the consequence that the Deputy Collector and D. R. C. Ordered on the 25th of August 1965, the ejectment of the allottees.
6. The allottees approached the Custodian and obtained an order on the 28th of August 1965, to maintain status quo.
7. In spite of the above order of the Custodian the parties have started another round of civil litigation. The allottees filed a suit bearing No. 31 of 1967 forgetting the decree which was obtained by Vanibai and her son in Suit No. 28 of 1960 on the 15th of December 1961, set aside on the ground that it was obtained by fraud. Vanibai and her son filed a Counter Suit No. 56 of 1967 for declaration of their title and possession of the allotted land. They also made an application under Order XL, ruleth 1, C. P. C. For the appointment of a receiver. They alleged in it that they were the owners of the property and that respondents Nos. 5 to 37 were in unauthorised occupation of it. In justification of the appointment of a receiver they alleged that it would be difficult to estimate the income of the property if a receiver was not appointed. The learned Judge heard the parties and dismissed the application on the 21st of October 1967 mainly on the ground that the respondents were in possession of the land from 1959. It could therefore, be presumed that the crop which was standing on it belonged to them and that the question of the status of the property was before the Custodian who had ordered maintenance of status quo. The plaintiffs have come in appeal against that order and the parties were heard at length as mentioned above.
8. Arguments were addressed on behalf of the appellants as if the suit was to be decided in this appeal that is not so. This appeal is to be decided in the perspective that it will dispose of an interlocutory application on the considerations laid down in rule 1 of Order XL, C. P. C. They are only: whether it is just and convenient to appoint the receiver or not. The main reason given on behalf of the appellants for the appointment was that it would be difficult to estimate the income of the property. But we have to keep in mind that the appellants are out of possession from 1959 and their present suit is not for mesne profits, damages or compensation for use and occupation. The basis of their claim is that they are the owners of the land by virtue of inheritance but this claim has been shaken because of the fact disclosed in, the report of the Additional Custodian. The disclosure compelled counsel for the appellants to take the stand that the claim of Pritamdas only should be disregarded for the present, but in reality this is no answer to the allegation of fraud. Because if it is true then the consequences will be much more serious than for getting the claim of the son.
Additionally, counsel conceded that Vanibai could not claim to be the owner of the property because her interest should ordinarily be limited to life interest as a widow. Counsel did try to circumvent this prima facie weakness of his clients by saying that the allotments which were made in favour of the respondents having been cancelled and a consent having been given by them on the 24th of February 1965, that they may be given some other land, their presence on the property was entirely without legal justification. This contention cannot be given much weight because weakness of the opposite-party does not strengthen the appellants' claim. Moreover, the reply of Mr. Khalid M. Ishaque was that the cancellation was made and the consent was given before the disclosure of the facts which prima facie constitute fraud.
9. In addition to- the above considerations which weigh against the appellants from the point of view of justice and convenience for purpose of this interlocutory decision, a difficult legal objection was raised by Mr. Wasim Hamid Rizvi on behalf of the Custodian to the effect that the order of the Custodian for maintenance of status quo being in existence it would amount to modifying, if not nullifying that order, if the Court was to direct that possession of the property be taken over by a receiver. Such a modification, counsel pointed out, was inconsistent with provisions of section 41 of the Administration of Evacuee Property Act, 1957.
10. In conclusion of the above discussion I dismiss this appeal with costs.