This revision application under section 115, C. P. C. Has been filed against the order of the learned District Judge, Sanghar, dated 21st October, 1979, passed in Miscellaneous Civil Appeal No. 41/1979, and the order of the learned Civil Judge, dated 4th October, 1979, appointing receiver in Suit No. 13/1979.
2. The facts leading to filing of revision application are as under :-
3. Agricultural land measuring 189.11 acres, situated in Deh Gharahi Maghan, Tapo Khahore, taluka Khipro, District Sanghar, is owned by Mst. Rajbai were of Doolah Rajbai It is the case of the applicant that he is lessee of the aforesaid land which he had taken from Mst. Rajbai, through a registered lease deed dated 4th April, 1979 and he has been in posses--sion of the land as such and had raised the Kharif crop. On 18th September, 1979 the two respondents had filed Suit No. 13/79, in the Court of Civil Judge, Khipro, for settlement of accounts and mesne profits valued at Rs. One thousand on the allegations that they are the lessees of the land to question and the applicant was in possession of the same as their Manager. It was further their case that the applicant as Manager was entitled to get only 1/8th of the produce but he refused to give them the share of the produce and wanted to appropriate the entire crop. The two respondents based their suit on a registered sale-deed alleged to have been executed by Mst. Rajbai on 7th January, 1979. According to them the lease was for seven years commencing from 1979-80 ending in 1985-86. They paid lease money for current year 1979-80. Further according to the respondents the applicant who used to manage the land of Mst. Rajbai, prior to the lease of the same to them was appointed by them as Manager on their behalf to manage and get the land cultivated. The applicant had accordingly got the cotton crop cultivated in Kharit' season over the land which was ready for picking but as the applicant had refused to give the accounts they filed the suit.
4. In the prayer clause the respondents in their plaint prayed for judgment and decree as under ;-
(a) That this Hon'ble Court will be pleased to order the defendant No. 1 to render accounts of the produce of current Kharif (cotton) crop of the land in suit to the plaintiffs and order the defendant No. 1 to pay mesne profits arising out of produce of the land mis--appropriated by him ;
(b) costs of the suit be borne by the defendants.
(c) any other relief this Hon'ble Court deems fit may be awarded to the plaintiffs."
It is thus very clear that the suit was for accounts of the produce of current Kharif crop of the land in the suit and for mesne profits arising of the produce of allegedly misappropriated by him.
5. Along with the plaint an application under Order XL, rule 1, . P. C. Was filed praying for appointment of interim receiver over the land in suit and the standing crops. The suit was filed against the applicant land Mst. Rajbai, the owner of the land was shown as defendant No. 2. Notice of the application was given to the defendant but it is the case of applicant defendant that the order was passed by the learned Civil fudge, Khipro, ex parte as endorsement about refusal to take notice was arranged in connivance with bailiff by the respondents. The learned Civil judge, Khipro, appointed interim receiver as prayed for and fixed the matter for hearing on 20th October, 1979 for report of the receiver. Against the aforesaid order of the learned Civil Judge, Khipro dated 4th October, 1979 an appeal was filed by the applicant before the District Judge, Sanghar. (which was decided by order dated 21st October, 1979. The learned District fudge. Sanghar, considering the fact that the appellant was in possession land either as lessee or in any case, at least as manager on behalf of the respondents was of the opinion that it was not necessary to appoint receiver it security in the sum of Rs. One lakh in the shape of bank guarantee was furnished by the appellant within a period of one month.
6. It is apparent from the record that the respondents filed suit for settlement of accounts and mesne profits in respect of produce of the agricultural land in dispute only for the Kharif crop of the year 1979-80, .. Is further apparent as even observed by the learned District Judge, Sanghar, that not only the applicant claimed to be lessee of the land under lease deed of a prior date executed by the owner but even otherwise it as undisputed that he was in cultivating possession of the land.
Order XL, rule 1, C. P. C. Which is with respect to appointment of receiver makes it clear that where it appears to the Court to be just and convenient the court may 1 order appoint a receiver. However, sub-rule (2) of the aforesaid rule (Provides that nothing in the rule shall authorise the Court to remove from (the possession or custody of property and person whom any party to the suit has not a present right so to remove. The Court of the learned Civil Khipro, had, therefore, no authority to remove from possession had custody of the property, the applicant for whose removal the plaintiff the suit had no present right.
7. In this respect as allegedly stated the learned District Judge, Sanghar, too had expressed the opinion in his impugned order that the of receiver in the case was not a proper order and yet he proceeded to further order that the appointment of receiver should continue in case the applicant did not furnish security in the shape of bank guarantee for an amount of Rs. One Lakh. The impugned order, therefore, is to say the least contradictory in that in the same breath in which it was observed that the appointment of receiver in the case would not be proper, the appointment already made by order of the learned Civil Judge, Khipro, was being maintained by imposing the condition with regard to furnishing of security.
8. It has been contended by the learned counsel for the applicant that admittedly the lease was for the fifty per cent Zamindari share of the land in question for which lease money of Rs. 18,000. Bad been paid and out of the aforesaid Zamindari share even if the contention of the plaintiff is proved, 1/8th share of the crop was to go to the applicant as Manager and 7/8th was share of the produce in respect of which the suit had been filed for accounts for that one crop only. The amount of security of Rs. One Lakh was, therefore, undoubtedly excessive in the extreme and could have been beyond the competency of the applicant to furnish. The impug--ned order. Therefore, amounts to maintaining the order of appointment of receiver making of which could not have been considered to be "just and convenient". As already observed the alleged dispute over the accounts was of crop of leased land for which even according to the respondents only 3n amount of Rs. 18,000 as lease money for the year has been made and, therefore, it is not easily conceivable that security was made a pre-condition for the removal of the receiver. The result was that the receiver already appointed by the court remained as such and the record shows that Mukhtiarkar and F. C. M., Khipro, who was appointed receiver submitted report that Batai of cotton picked from the land involved in the above Mis--cellaneous Civil Appeal had been made on 13th December, 1979 and shares of the haris have been given to them. The remaining Zamindari share of 14 Kgs. Cotton has been kept as AMANAT with Nihal son of Sultan Kaniyo. He had sought the order of District and Sessions Judge, Sanghar, with regard to the disposal of the same. Orders had also been sought for raising Rabi Cultivation and providing seed and fertilizer to haris.
9. The object and purpose of appointment of receiver could be the subject-matter of litigation pending determination of the rights of the parties. The subject-matter of the suit as already stated is accounts of the produce for the season and, therefore, there could be no further justification for any continuation of the order with regard to the appointment of receiver.
10. For the reasons already given the order of the learned Civil Judge, Khipro and the order in appeal of the learned District Judge, Sanghar, cannot be maintained and are hereby set aside. The Court concern--ed in which the suit is pending should now pass appropriate orders with regard to the disposal of the produce which was kept in safe custody by receiver. Under the circumstances there shall be no order as to costs.