1. ' This is a revision petition against an order of the District Judge, Muzaffarabad, dated 18-4-1979.
2. Whereby the order passed by Sub-Judge (Traffic Magistrate), Muzaffarabad, dated 12-2-1979 was upheld and the application of the petition for appointment of a receiver of the property, under Order XL, rule 1, C. P. C, was rejected.
3. ' Brief facts which have resulted in the present revision petition are that the petitioner instituted a suit on 7-5-1975 alleging therein that the land comprising Survey No, 118 measuring 26 kanals and 12 marlas situate in village Dhanni Syedan, Tehsil Muzaffarabad was the property of Mahboob Ali Shah. Syed Bunyad Alt Shah, non-petitioner had got the possession of the suit land from Mahboob Ali Shah deceased in lieu of Survey No, 204 measuring 23 kanals 9 marlas, promising with Mahboob Ali Shah deceased that the non-petitioner would construct a house for him in Survey No, 204 but the non-petitioner did not abide by his promise and did not construct any house in Khasra No, 204 which he had promised at the time of exchange of the aforesaid survey numbers. On these facts a prayer for a declaration to the effect that non-petitioner No, 1 had played fraud upon Mahboob Ali Shah deceased and as such he was not entitled to retain possession of house or Survey No, 118 anymore. The petitioner has also sought relief of possession of house and whole of the land comprising Khasra No, 118 as a consequential relief.
4. ' In written statement, it has been contended by the non-petitioner that he had been in possession of the suit land before 1958 when the father of the non-petitioner was alive. It has also been contended in the written statement that non-petitioner had effected improvements over the suit land to the tune of Rs, 30,000. The defendant had denied the title of Mahboob All Shah or the plaintiff-petitioner to the suit land. An application for the appointment of a receiver was also submitted on 7-5-1975 wherein it was prayed that Survey No, 118 alongwith the house and survey No, 204 be handed over to the receiver. It was alleged in the application that the non-petitioner who was in possession of the house as well as the land comprising Survey No, 118 was damaging the suit land by breaking the boundaries of the disputed property and was changing the shape of the disputed property. The non-petitioner filed written objections to this application denying the allegations made by the plaintiff.
5. ' It appears that initially, the petitioner did not press the application for the appointment of a receiver and it was almost after 3 years that the arguments on the application for the appointment of the receiver were heard and finally the application was rejected. It is borne out by the record that Mahboob Ali Shah deceased was the brother of the petitioner as well as non-petitioner but it is curious to note that none of them claims the property as the heir of Mahboob Ali Shah. Mahboob Ali Shah is stated to have died in the year 1965. Although the petitioner alleges that she was the sister of Mahboob Ali Shah but she has not asserted in the plaint as to how she was entitled to the whole of the land comprising Survey No, 118 which Originally belonged to Mahboob Ali Shah. The learned counsel for the petitioner has vehemently argued that it was just and convenient for the parties if the property was attached and handed over to some receiver. The learned counsel has cited a number of authorities in support of his contention.
6. ' In AIR 1938 Mad. 730, the plaintiff was a minor who had got a decree in his favour to the extent of one-half of the disputed property. It was observed in this case that generally a receiver would not be appointed merely because a member of the family filed a suit for partition, but there were certain circumstances in that case which justified the order of attachment. It was further observed in that case that the plaintiff was a minor and he was not able to secure the share of produce and the receiver was appointed only to harvest the standing crops and it was hoped that the suit would be disposed of before further agricultural operations. On the aforesaid grounds, the order of appointment of a receiver passed by the District Judge for the purposes of one harvest was not disturbed.
7. ' In AIR 1922 Lah. 444, the order of the appointment of a receiver was upheld on the ground that the plaintiff had admitted in the plaint that one-half of the disputed property was admittedly the trust property. It was argued in that case that a receiver could not be appointed in view of Order XL, rule 1(2), C. P. C. Because the plaintiff was not entitled to the immediate possession of the disputed property. Their Lordships, Mr. Justice Shadi Lal, C. J. And Mr. Justice Abdul Qadir, J. Opined that the afore said sub-rule (2) of rule 1 of Order XL, C. P. C. Was not a bar for the appointment of a receiver because the aforesaid rule would be applicable only to a person who was a party to the suit.
8. Reliance in this case was placed on two cases decided by Calcutta High Court, entitled "Satva Narain v. Keshabali" and "Ajapn Natesa Pandara Sannadhi v. Ramalingam Pillai". I am in respectful agreement with the aforesaid view that the bar contained in the aforesaid rule A would not be applicable to the parties to the suit. It would only come into play in case of a third person who is in possession of the disputed property and is not a party to the proceedings.
9. ' In AIR 1937 Mad. 163, it was held that the receiver could be appointed even in a case where the suit is merely a declaratory suit and no other relief is sought. The same view has been held in AIR 1927 Lah.
65. In the instant case, the relief of possession has also been sought as a consequential relief.
10. Therefore, the aforesaid authorities are not applicable to the facts of the present case. Moreover, I am also of the view that there is no bar to attach the property and hand it over to the receiver even in a case where the relief sought is merely declaratory one. In AIR 1929 Lah. 497, the trial Judge decreed the suit in favour of the plaintiff to the extent of 1/5th of the total disputed property and it was further opined that the partition could not be enforced during the lifetime of the father of the decree-holder. There were two appeals preferred against the judgment and decree of the trial Judge and under these circumstances, a receiver of the property was appointed. In that case, it was also opined that when one of the co-sharers was deprived of his share of produce, the receiver must be appointed. As it has already been pointed out that in the instant case, the parties do not admit the position of being co-sharers in the land, the legal proposition evolved in said authority is inapplicable. But even if it is assumed that such a position exists, then also. In my opinion, it cannot be laid down as an absolute rule of law that if a co-sharer is out of the possession, a receiver should he appointed in all cases. It depends upon the circumstances of each case and the paramount consideration while appointing a receiver with regard to the disputed propel would be whether it is just and convenient to do so.
11. ' In PLD 1977 Kar. 280 the suit was for the dissolution of the partnership and it was deemed just and proper to appoint a receiver of the assets of the firm to safeguard the interests of the partners of the firm. Needless to say that this authority is distinguishable and is not applicable to the facts of the present case. In PLD 1958 Lah. 288 it was held that plaintiff who was a co-sharer and was out of possession had failed to make out a case for appointing a receiver of the property.
12. ' The learned counsel for the non-petitioner has cited 1974 SCMR 54 wherein it was held that where the title of the suit property was disputed, receiver could not be appointed. In PLD 1977 Lah.
13. 830, it was held that the discretion for the appointment of a receiver should be used very sparingly and under exceptional circumstances. It was also observed in this case that the allegation of imminent danger to the property was essential before granting the prayer for the appoint of a receiver.
14. ' It is apparent from the aforesaid authorities that no hard and fast rule can be made with regard to the appointment of a receiver in a civil case. Each case depends upon its own peculiar circumstances. The cardinal principle is whether it would he just and convenient to appoint a receiver and in the instant case, according to the petitioner herself, the non-petitioner had been in possession of the suit land even in the lifetime of Mahboob Ali Shah deceased, and it is on the record that Mahboob Ali Shah died in the year 1965. The suit was instituted in the year 1975. Even according to the stand of the petitioner, the possession of the non-petitioner comes to more than 10 years old. It is also the case of the petitioner that the non-petitioner took the possession of the disputed property by virtue of an exchange between Mahboob Ali Shah and non-petitioner No, 1.
15. The allegation of fraud, i. e that the non-petitioner did not fulfil his promise with regard to the construction of a house on Survey No, 204. Is merely an allegation and it is yet to be proved by the petitioner. Moreover, the fact that after submission the application, the petitioner did not press the application almost for 3 years, is indicative of the fact that there is no imminent danger to the property. The allegation in the application with regard to the property being wasted is of a general nature and a vague one. How the property is being wasted by the change in the boundaries of the suit land, is not clear. Moreover, more allegation of wastage of the disputed property is not sufficient. There is no prima facie proof that the non-petitioner has been guilty of any act which is likely to damage the property. The appointment of a receiver in a civil case, must be resorted to very sparingly and only under exceptional circumstances, because such a step is likely to cause great inconvenience by depriving the person in possession of the property from exercising his right of enjoyment of the property.
16. ' In the light of what has been stated above, finding no force in the revision petition, it is hereby dismissed with costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.