1. C.M.A. No.6388 of 2008 ' TUFAIL H. EBRAHIM, J.--- This application has been filed by defendant No.1 under Order XL, rule 1, C.P.C. Read with section 151 C.P.C. For appointment of Receiver with full powers in respect of suit property viz. Flat No.F-2/4, 3rd Floor, Maymar Heights, Block 14, Gulshan-e-Iqbal, Karachi, including the power of removing any person(s) acting through on behalf of deceased plaintiff.
2. ' It is the case of defendant No.1, that he has purchased the suit property from the deceased plaintiff for valuable sale consideration through registered sale-deed on 18-7-2005, the possession of the suit property was not taken and the deceased plaintiff continued to remain in possession of the suit property as tenant of defendant No.1 for which tenancy agreement was executed on 1-8- 2005. However, it is the case of the plaintiffs that their father who had filed this suit was the lawful owner of the suit property, he did not sell the suit property to defendant No.1, the possession of the suit property had always remained with the deceased plaintiff and after his death in possession of the legal heirs and defendant. No.1 who is an estate agent, fraudulently obtained the sale-deed in his name in the garb of registration of general power of attorney/sub-general power of attorney by the deceased plaintiff in favour of his son.
3. ' Prior to filing of this application the original plaintiff has expired and his legal heirs have been impleaded in this suit.
4. ' The learned counsel for defendant No.1 submits that defendant No.1 is working in Dubai as an IT professional. Defendant No.1 on payment of the full and final sale consideration had purchased the suit property from the deceased plaintiff vide sale-deed dated 18-7-2005 and on the request of the deceased plaintiff possession of the suit property was not taken and instead the deceased plaintiff was allowed to continue in possession of the suit property as tenant of defendant No.1 vide tenancy agreement dated 1-8-2005. The learned counsel of defendant No.1 contends that defendant No.1 has not played any fraud and the sale-deed is for lawful consideration as the deceased plaintiff had executed and registered the sale-deed without any coercion or under influence before the concerned Sub-Registrar (defendant No.2). Learned counsel for defendant No.1 has argued that the suit property has been found in possession of one Owais Ahmed as per report of the Commissioner dated (presented on) 25-7-2008. It has been vehemently argued that defendant No.1 is the lawful owner of the suit property and Mr. Owais Ahmad who was found to be in possession of the suit property is not the legal heir of the deceased plaintiff and is a stranger to the suit, and hence it would be in the interest of justice that receiver should be appointed to preserve the said property as prayed.
5. ' It is contended by the learned counsel for the plaintiffs (the legal heirs) that the deceased plaintiff was nearly 87 years old, not keeping good health and was living alone as all his children were residing abroad at the time of alleged fraudulent and collusive registration of the sale-deed of the suit property. Thai defendant No.1 being an estate agent, through whom the deceased plaintiff had previously also sold another property has played fraud upon the deceased plaintiff and was fraudulently able to obtain the signatures on the sale-deed in respect of the suit property in his favour; whereas the deceased plaintiff wanted to transfer suit property in his favour, whereas the deceased plaintiff wanted to transfer suit property in favour of his son through general power of attorney/sub-power of attorney. The deceased plaintiff on coming to know about this mischief and fraud had filed an F.I.R. And thereafter filed this suit against defendants for declaration, injunction, cancellation of documents and damages against the defendants. The learned counsel for the plaintiffs has stated that Mr. Owais Ahmed who was found to be in possession at the time of inspection by the Commissioner is the real nephew of the deceased plaintiff and was duly authorized by the legal heirs of the deceased plaintiff to occupy the suit property to protect and preserve the suit property and he had not claimed possession in his own personal right. The learned counsel vehemently argued that defendant No.1 has obtained the sale-deed fraudulently and defendant No.1 has never been in physical possession of the suit property. It has, been submitted by the learned counsel that defendant No.1 has not even alleged in his application and accompanying affidavit that there is even any apprehension and fear that the suit property is being damaged or wasted and even as per the Commissioner report, the suit property was found to be in good condition. He has prayed for dismissal of this application.
6. ' Both the learned counsel have cited various case-laws on the question of appointment of receiver. Since the principles of appointment of receiver are well-settled, I will not dilate upon the said case-laws referred by the learned counsel of the parties, as the facts in the cited Case-laws were not similar to the present case, which is indeed quite peculiar in nature.
7. ' After perusal of the case and hearing the arguments of the learned counsel of the parties and without dilating on the question of the sale of the suit Property which can only be decided after recording of evidence and hearing arguments of the learned counsel, it is sufficient to conclude that the physical possession of suit property has always remained in the possession of the deceased plaintiff and after his death the suit property has remained in the possession of the present plaintiffs and not strangers. Even as per the claim of defendant No.1 is to be accepted, still then the suit property was in possession of deceased plaintiff as tenant (inducted by defendant No.1 himself) and after his death the legal heirs in possession of the suit property are entitled to enjoy the benefits of the suit property as tenants in accordance with law.
8. ' From the arguments of the learned counsel of defendant No.1, this Court is not able to come to the conclusion that it is just and convenient to appoint a receiver in the instant case, more particularly when (a) the said property was never in possession of defendant No.1, (b) the possession of the suit property have always been with the deceased plaintiff and after his death with the legal heirs of the deceased plaintiffs as owners (as alleged by plaintiffs) or as tenant of defendant No.1 (as alleged by defendant No.1), (c) preservation, damage and wastage of the suit property has not been alleged by defendant No.1, and (d) issues have been settled and commissioner has been appointed to record the evidence within three months vide order dated 27-10-2009.
9. ' For the foregoing facts and reasons, this Court has come to the conclusion that it is not just and convenient to impose the harsh remedy of appointing receiver in this case. Accordingly this application is dismissed.