' ZAFAR AHMED RAJPUT, J.- This civil revision under section 115, C.P.C. Calls into question the order dated 5-3-2013 passed by the learned Additional District Judge-H, Khairpur whereby, allowing Civil Appeal No,119 of 2012, filed by the respondent No,1, set aside the order dated 6-11-2012 passed by the learned Senior Civil Judge-I, Khairpur on an application under Order XL, Rule 1 C.P.C. Filed by the applicant/plaintiff in F.C. Suit No,42 of 2012.
2. Briefly stated facts of the case are that the applicant/plaintiff filed Civil Suit No, 42 of 2012 in the Court of Senior Civil Judge-I Khairpur against the respondents/defendants alleging therein that he and respondents Nos.1 to 6 are the legal heirs of deceased Syed Iqbal Hussain who was their father/husband and the owner of immovable properties i,e, (i) agricultural land total admeasuring 7-04 acres, situated in Deh Kingri, Tapo Pir Jo Goth, Taluka Kingri, District Khairpur and (ii) one pacca house, situated on a sikni plot in Kalri Mohallah, Pir Jo , .Goth, Taluka Kingri; that the applicant requested to respondents for partition of the suit properties among all legal heirs as per their respective shares but they avoided to do so on one or other pretext, hence, the cause of action accrued to applicant for filing of a civil suit for declaration, partition, separate possession and permanent injunction, with the following prayers`:---
(a) To pass the judgment and decree whereby partitioning the suit property viz: Jiryan No,29 S. No, 70/1, (0-35 ghunta), 70/2 (0-36 ghunta), 426 (0-39 ghunta), 427 (0-28 ghunta), total 4 acre 38 ghunta and Jiryan No,23, from Survey No,430, (2-06) total 2 acres 6 ghunta situated in Deh Kingri Tapo Pir Jo Goth Taluka Kingri, District Khairpur and one Pacca house situated in Kalri Mohallah Pir Jo Goth, as per share of the plaintiff and defendant No,1 to 6 and if suit properties are found indivisible by leap and bound, then the same may be ordered to be sold out in open auction and its proceeds may be divided among the shareholders.
(b) Further may be directed to the concerned DDO/SDM, Mukhtiarkar Taluka Kingri to keep the Foti Khata in favour of the plaintiff and defendant No,1 to 6 as per their equal share.
(c) Further may be directed to the concerned DDO/SDM, Mukhtiarkar Taluka Kingri to make partition of the suit property as per share of the legal heirs and hand over the possession to the legal heirs or to any other competent person to do the above act.
(d) To award the costs of the suit and any other relief as this Honourable court deems fit in the above circumstances.
3. Respondent No,1 filed written statement for self and on behalf of respondent No,3, as her attorney, wherein he denied the claim of applicant that he and the respondents Nos.2 and 4 to 6 are legal heirs of deceased Syed Iqbal Hussain. Respondents Nos.2 and 4 to 6 also filed their written statements wherein they admitting the claim of applicant, recorded their no objection for the partition of the suit property among all legal heirs of said deceased. It will be pertinent to mention here that during pendency of the civil suit, the respondent No,1 died; therefore, his legal heirs were brought on record through amended title.
4. The applicant/plaintiff also filed an application under Order XL, Rule 1, C.P.C. For appointment of a Receiver. The application was allowed by the learned Senior Civil Judge Court-1, Khairpur, vide order dated 6-11-2012 and the Mukhtiarkar (Revenue) Taluka Kingri was appointed as Receiver to take over the produce of the suit-land and deposit the amount of each crop in Court till final decision of the Court. Respondent No,1 impugned the said Order dated 6-11-2012 before the District Judge Khairpur in Civil Appeal No,119 of 2012. This was heard and allowed by the learned Additional District Judge-II, Khairpur, whereby the order of learned trial Court was set aside. Hence, this revision.
5. Heard the learned counsel for the parties and perused the material on record.
6. Learned counsel for the applicant contended that the learned appellate Court while setting aside the order of learned trial Court ignored the established facts of the case that the applicant being son is one of the legal heirs of deceased Syed Iqbal Hussain; therefore, he is entitled for the share in the properties left by his deceased father as per sharia. Relying upon the case of Muhammad Yousuf Sani v. Haji Muhammad Hussain, reported in 2012 YLR 713, he also contended that under law of inheritance the property of a Muslim on his death vests in his legal heirs who become its owners without formal attestation of inheritance mutation in their favour; therefore, no adverse opinion can be drawn if the applicant did not get the khata exchanged after death of his father. He has further contended that the respondent No,1 in his lifetime enjoyed all the benefits of the suit land and after his death his legal heirs are trying to usurp his share in produce/crops of suit-land, hence, appointment of Receiver was/is necessary to take all the affairs, liabilities, assets, and income which is being generated from the suit-land, therefore, the learned trial Court rightly allowed the application under Order XL, Rule 1, C.P.C. And thereby appointed Mukhtiarkar (Revenue) as Receiver but the learned appellate Court, without observing the applicability of law of inheritance and applying his judicious mind, set aside the Order of learned trial Court by the Order dated 5-3-2013, which is liable to be reversed.
7. On the other hand, learned counsel for the respondents Nos.1(a) to l(f) supported the impugned order of learned appellate Court. He expressed his view that since the applicant did not seek declaration of ownership in respect of suit properties in his plaint, although he captioned his suit for declaration and etc. Thus, his suit is not maintainable in law, as without seeking declaration the relief of partition possession etc. Cannot be granted. He further contended that the learned appellate Court rightly allowed the appeal of respondent No,1 observing that as per Revenue Record the suit properties still stands in the name of deceased who died 10 years back, and if applicant was his legal heir then what prevented him to get the khata changed; therefore, order passed by the learned Senior Civil Judge-I, Khairpur for appointment of Receiver of the properties was rightly set aside by the learned appellate Court being hasty one and without lawful authority.
8. I have given due consideration to the contentions of learned counsel for the parties. It is admitted fact that the suit properties still stand in the name of deceased father/husband of applicant and respondents Nos.1 to 6. But on this score, the applicant's right in suit properties left by his deceased father cannot be denied. Under the provisions of Muhammadan Law, on the death of a Muslim his property devolves on his legal heirs and they are entitled to inherit according to the shares prescribed by Muslim Law. No formal attestation of the mutation is necessary. I may refer to Para 56 of D.F. Mullah's Principles of Muhammadan Law, third Edition 2012 by M. Mahmood, which reads as follows:--- "56. Vested inheritance.--- A 'vested inheritance' is the share which, vests in an heir at the moment of the ancestor's death. If the heir dies before distribution, the share of the inheritance which has vested in him will pass to such persons as are his heirs at the time of his death. "
' A perusal of above referred Para leaves no doubt that as soon as a Muslim dies, the estate vests in his heirs and they become owners. In the instant case the applicant claims to be one of the legal heirs of the deceased being his son, therefore, he is entitled to inherit his estate according to his share prescribed by Muslim Law. The argument that the suit properties still stand in the name of deceased in record of rights and that in last 10 years the applicant did not get the record of rights mutated; therefore, he is not entitled for the relief sought by him, is misconceived. I resolve that on the death of a Muslim his legal heirs are A entitled to inherit his estate although their names do not appear as heirs in the record of rights maintained by the Revenue Authority.
9. As regards the contention of learned counsel for respondents Nos.1(a) to 1(f) that without seeking declaration the relief of partition, separate possession etc. Cannot be granted, it is matter of record that the respondent No,1 in his lifetime had filed Succession Petition No,38 of 2000 before the learned District Judge in respect of amount left by the deceased in his Bank Account No,KB-180 in Muslim Commercial Bank, Pir Jo Goth Branch before the learned District Judge, claiming himself and respondent No,3 as the only legal heirs of the deceased. The said succession petition was heard by the learned Additional District Judge, Khairpur wherein the applicant and respondents Nos.2 and 4 to 6 filed application under Order I, Rule 10, C.P.C. To implead them as party being legal heirs of the deceased. The application was allowed after a confirmation report received from Mukhtiarkar, Kingri and respondents Nos.2 and 4 to 6 were joined in the succession petition as respondents Nos.2 to 6. Thereafter, the learned Additional District Judge, by consent of the parties, proceeded with the matter after framing as many as 5 issues, out of which Issues Nos.2 and 3 were in respect of the relation of applicant and respondents Nos.2 and 4 to 6 with deceased Syed Iqbal Hussain and their entitlement of shares, which are reproduced here, as under:---
(2) "Whether the respondents Nos. 2 to 6 are sons and daughters of deceased Syed Iqbal Hussain Shah?"
(3) "Which of the parties is/are entitled to what extent of the share in the estate left by the deceased?"
' It may be noted that the present applicant was respondent No,2 and present respondents Nos.2, 4, 5 and 6 were respondents Nos.2 to 6 in the said succession petition. The learned Additional District Judge having recorded evidence and hearing the parties allowed the succession petition, vide judgment and decree dated 13-11-2007 and 15-11-2007 respectively, holding that the applicant and respondents Nos.2 and 4 to 6, being sons and daughters of the deceased, are his legal heirs and they are co-sharers according to Muhammadan Law. The said judgment was impugned by the respondent No,1 before the High Court of Sindh, Bench at Sukkur in Civil Appeal No,1 of 2008, which was dismissed, vide order dated 12-1-2009.
10. The respondent No,1 did not stop here. He then filed a Civil Suit bearing No,39 of 2010 against the applicant and respondents Nos.2 and 4 to 6 for declaration and permanent injunction claiming himself again as the only legal heir of late Syed Iqbal Hussain but the said suit was dismissed vide judgment dated 25-1-2012 by the learned Court of Senior Civil Judge-I, Khairpur holding that the respondent No,1 failed to prove that he is the only son/legal heir of the deceased to inherit his properties and that the applicant and respondents Nos.2 and 4 to 6 are not the real sons and daughters of the deceased and; therefore, are not entitled to inherit the said property.
' Both, the succession petition and the civil suit filed by the respondent No,1 have attained finality; therefore, the issue of declaration in respect of status/relation of applicant and respondents Nos.2 and 4 to 6 with the deceased stood resolved, which cannot be reopened in any proceedings being bar under section 11 of C.P.C. Since the legal character and right of the applicant is prima facie established in the previous litigations as legal heir of deceased Syed Iqbal Hussain, he is not required to seek declaration in his suit. The applicant is already co-owner/co-sharer in the estate of deceased by virtue of inheritance. When the title of the plaintiff is not defective he can competently bring his suit in the present form and merely denial of one out of total 6 coowners/co- sharer cannot convert the suit in to one of the title. Hence, the applicant cannot be refused from the relief of appointment of a Receiver of the suit properties if otherwise his application in this respect fulfils the requirements of Order XL Rule 1, C.P.C.
11. So far the case of applicant with regard to appointment of a Receiver is concern, Order XL, Rule 1, C.P.C. Provides that where it appears to the Court to be just and convenient, the Court may by order appoint a Receiver of any property for the realization, management, protection, preservation and improvement of the property, the collection of the rent and profits thereof, the 'application and disposal of such rent and profits, and the execution of documents as the owner himself has, or such or those powers as the Court deems fit.
12. It is settled principle of law that for the purpose of Order XL, Rule 1, C.P.C. a party seeking appointment of receiver, over the property involved in a particular suit, has to prove, at such interlocutory stage of the suit itself, by means of cogent evidence that property involved in the suit is at a great risk and danger of getting destroyed at the hands of the other party, so as the same is likely to cause irreparable loss to the property or to the collection of rent or profit thereof are not properly managed and protected; therefore, it is most essential that a receiver may be appointed with direction to take over the possession of such a property. The object behind the appointment of a Receiver is, therefore, to preserve the status quo during the pendency of litigation. It is the harshest remedy provided by the C.P.C. Upon the appointment of B a Receiver the property comes into custodia legis for the benefit of all the owners of the property and the possession of the Receiver is deemed to be possession of the Court.
13. In the instant case deceased Syed Iqbal Hussain died about 10 years back; the applicant claims his right in the properties left by him as his one of the legal heirs. From the day one, since the death of decedant, the property had been under the control of respondent No,1 during his lifetime and after death of respondent No,1 the same is under the control of his legal heirs. As such, the applicant and other legal heirs of the deceased, except respondent No,1, have not benefited from the properties; its crops and revenue. This fact establishes that the agricultural land in suit is unmanaged and unprotected. Hence, the order passed by the learned Senior Civil Judge-I, Khairpur for appointment of Receiver appears to be just and proper, which has been set aside by the learned Additional District Judge-II, Khairpur without considering the circumstances of the case and status of the applicant as one of the legal heirs of his deceased father in the light of previous litigation between the parties and Muhammadan Law.
14. In view of above facts and circumstances, I set aside the impugned Order dated 5-3-2013, passed by the learned Additional District Judge-II, Khairpur and maintain the order dated 6-11-2012 passed by the learned Senior Civil Judge-I, Khairpur with a slight modification that the Mukhtiarkar (Revenue), Kingri is appointed as Receiver to take over the affairs, liabilities, assets, and revenue, which is being generated from the palm trees and agricultural land i,e, bearing Jiryan No,29 and Survey Nos.70/1, 70/2, 426 and 427, admeasuring 4-38 acres and Juryan No,234 and Survey No,430 admeasuring 2-06 acres, total admeasuring 7-04 acres situated in Deh Kingri, Tapo Pir Jo Goth, Taluka Kingri, District Khairpur, who shall deposit the share of applicant/plaintiff from income/profit of the land produce/crops etc. After calculating it as per Muslim Sharia, in the learned Court of Senior Civil Judge-I, Khairpur. However, the applicant shall not withdraw the said amount till the final disposal of the case.
15. The learned Senior Civil Judge-I, Khairpur is expected to expedite the civil suit and dispose it of within six months from the date of this Order.
The civil revision application stands disposed of accordingly, with no order as to costs.