' AMIN-UD-DIN KHAN, J.--- Through this single judgment, I intend to dispose of Writ Petition No,1874 of 2011 and Writ Petition No,1941 of 2011 as common questions of law and facts are involved and both the writ petitions have arisen from one and the same order.
2. The brief facts of the case are that respondents Nos.1 to 4 filed a suit for Specific Performance against the petitioners on the basis of an affidavit dated 8-6-2005 allegedly to be an agreement to sell of the suit property. Along with the suit an application for appointment of receiver has been filed by the plaintiffs. The suit was resisted by filing written statement. The defendants/petitioners denied the alleged affidavit or any agreement. They also filed reply to the petition. The learned Civil Judge, Fortabbas vide order dated 30-4-2010 declined the application for appointment of receiver.
However, the defendants/petitioners were directed to furnish security equivalent to the alleged consideration amount of Rs,80,00,000. Aggrieved with the said order, the petitioners/defendants filed a revision before the learned Additional District Judge, Fortabbas which was also dismissed vide order dated 18-2-2011. Dissatisfied with the aforesaid orders of the courts below the petitioners/defendants have challenged the same before this court through the instant writ petitions.
3. On court query that when the jurisdictional value of the suit was Rs,80,00,000, how the revision was competent before the learned Additional District Judge, though this objection was not raised before this court by the learned counsel for the respondents, learned counsel for the petitioners while referring to section 11 of the Suit Valuation, Act, submitted that no doubt the revision was not competent before the Additional District Judge but no objection was raised by the learned counsel for the respondents or even it was not seen by the court itself whether the court has jurisdiction to entertain and decide the revision, therefore, it being a contributory negligence on, part of the parties and even the objection has not been raised till today, therefore, it can be ignored and under the constitutional jurisdiction, powers can be exercised by this Court. Learned counsel for the petitioners submitted that in the alleged affidavit if it is admitted, even then by no stretch of imagination, it can be said to be an agreement. Learned counsel further submitted that there are no signature of, the plaintiffs party on this affidavit. Learned counsel also submits that though there are two persons mentioned as identifier, they cannot be presumed to be the witnesses of the document. Learned counsel submits that there is no mention of any power of attorney on behalf of other owners allegedly agreed to sell the suit property. Learned counsel for the petitioners submits that first of all it is just an agreement to sell. If it be admitted it does not create or confer any right, or interest in the property but the right to file a suit for specific performance. It is further submitted that admittedly petitioners are owners in possession of the suit property, therefore, the appointment of receiver is absolutely not permissible under the law. Learned counsel further submitted that the relief granted by the trial Court was not even prayed for, therefore, order passed by the learned Civil Judge was without jurisdiction.
4. On the other hand learned counsel for the respondents submits that he has got recorded the statement-in-chief of five P. Ws. Learned counsel for the defendants is not cross-examining the witnesses. According to learned counsel plaintiffs have also purchased other property of the defendants worth Rs,11,00,00,000 from their brothers and sisters, therefore, there was no dispute between the brothers and sisters of the persons who gave affidavits to assure the plaintiffs that other owners are also willing to transfer property in their favour. Learned counsel for the respondents submits that petitioners have wrongly filed writ petition. The order passed by the learned Civil Judge was revisable and revision was competent before this court. According to learned counsel orders passed by the courts below are in accordance with law and these writ petitions are liable to be dismissed.
5. I have heard the learned counsel for the parties and perused the material available on record.
6. When confronted with the situation that how the application for appointment of receiver was competent when admittedly the petitioners/ defendants are owners of the suit property and no right in the property has been declared or created by any order or decree of the court. Learned counsel for the respondents is unable to satisfy the court. The order for rejection of application for appointment of receiver was in accordance with law. The relief granted to the plaintiffs by imposing a condition on defendants to furnish security equivalent to the alleged consideration amount of Rs,80,00,000 is absolutely without jurisdiction. The agreement to sell does not create a right or interest in the suit property, except a right to file a suit for specific performance. The jurisdiction exercised by the learned Additional District Judge while dismissing the revision petition was also without jurisdiction. When the orders passed by the courts below are without jurisdiction, then under constitutional jurisdiction this court has powers to scrutinize and see their validity.
7. For the foregoing discussion, both the writ petitions are accepted. The order dated 30-4-2010 passed by the learned Civil Judge 1st Class, Fortabbas imposing a condition on defendants to furnish security equivalent to the alleged consideration of Rs,80,00,000 and order dated 18-2-2011 passed by the learned Additional District Judge, Fortabbas are hereby quashed. Resultantly, application for appointment of receiver moved by the plaintiff shall be deemed to be dismissed in toto. 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.