1. ' This is an application under Order XL, rule 1, C. P. C. For appointment of receiver in respect of Khanqah-e-Tajia and removing defendant No, 1 from possession and custody of the said Khanqah and the property attached thereto.
2. ' Briefly the facts are that Pir Murshad Baba Yousuf Shah Taji appointed Baba Zaheen Shah Taji as his Sajjada Nasheen. On the death of Pir Murshad Baba Yousuf Shah Taji, he was buried at Mewashah Graveyard, Karachi and Baba Zaheen Shah Taji constructed his tomb. He also founded a Khanqah at the place of the tomb and during his lifetime ceremonies of yearly Urs were regularly held in the said Khanqah. Besides tomb a mosque, big hall called Darul-Uloom-e-Tajia, a library and a school were also constructed. Baba Zaheen Shah Taji, died on 23rd July, 1978 and it is alleged that just after his death defendant No, 1 proclaimed himself to be Sajjada Nasheen of the Khanqah and as he had access to each and every part of the property of the deceased he took over the management of all the properties including valuable documents, cash etc. It is alleged that defendant No, 1, forged documents and executed deed of relinquishment which was registered whereby the defendant No, 1, handed over the properties mentioned in Schedule I of the declaration of Waqf, dated 5-7-1974 held by him as Mutawalli to Muhammad Jamil and Muhammad Hashim, who have been appointed to act as Mutawallis. These Mutawallis are the sons of Baba Zaheen Shah Taji. The plaintiffs have further alleged that Baba Zaheen Shah Taji had a number of spiritual disciples and during his lifetime he published a list of Khulfa at page 433 of his book "Taj ul-Aulia". Out of the names mentioned in that list whoever was though fit and competent and to act as Khalifa. The name of defendant No, 1, does not appear in this list. It is stated that Baba Zaheen Shah Taji had stated in the book that no one else except the persons mentioned in the book shall be appointed as Khalifa. It is alleged that defendant No, 1 cannot be made as Khalifa. In these circumstances declaration has been sought that the deed of relinquishment, dated 17-5- 1979 be declared as void. Further relief for declaration that defendant No, 1 is not Sajjada Nasheen and is otherwise not competent to hold that office, for accounts and perpetual injunction have been sought.
3. ' Significantly enough the suit has not been filed by any of the persons who have been named according to the plaintiffs as competent for the office of Khalifa as mentioned in Tajul-Aulia. The suit has been filed by the daughters of Baba Zaheen Shah Taji. Defendant No, 1 has filed a counter affidavit in which it has been denied that Baba Zaheen Shah Taji had constructed or founded Khanqah-e-Sajjadia. It has been asserted that this was constructed at the expenses of defendant No, 1 and all the expenses for its maintenance and ceremonies were borne by him and that defendant No, 1 is in occupation and possession of the entire premises in his own right. After the death of Baba Zaheen Shah Taji he took charge of Sajjada Nasheen from 23-7-1978 and he has invested huge amount on improvement of the property. It has been stated that Baba Zaheen Shah Taji during his lifetime had appointed him as Khalifa. It has been alleged that three sons of Baba Zaheen Shah Taji have not objected to his acting as Sajjada Nasheen of Khanqah and that there is no property of any nature attached to this Khanqah. It has been stated that the suit is mala fide and it has been filed at the instance of Riazul Hussaini the husband of plaintiff No, 1 against whom at the instruction of Islamic Research Centre a criminal case of misappropriation has been registered. It has further been stated that the properties involved in the deed of relinquishment are two immovable properties which had been provided by defendant No, 1 and are not the properties of the Khanqah.
4. ' Mr. S. Sarni Ahmad, the learned counsel for the plaintiffs during his arguments has laid down stress mainly on the pleas that as defendant No, 1 was not named a successor to Baba Zaheen Shah Taji in his book Tajul-Aulia, he cannot be appointed as a Khalifa. The question whether a person can nominate any Khalifa is a disputed question which at this stage cannot be decided. However on the basis of prima facie evidence it has to be considered whether defendant No, I could be appointed as Khalifa as admittedly he has been acting as such since 1978. It is significant that although Baba Zaheen Shah Taji, died on 23-7-1978 no objections were taken by the plaintiffs or other disciples for more than three years. To support his contention the plaintiffs have relied upon the book referred above, the relevant pages of which have been filed with the plaint as Annexures X/E and X/F. It gives a list of 17 persons in Pakistan to act as the Khulfa of Baba Zaheen Shah Taji. At page 457 which is Annexture X/F it has been stated that besides the persons who have been nominated and whose Khilafat has been pointed out other Murids (disciples) may also apply for Khilafat from him. It is, therefore, clear that prima facie a list of Khulfa was published but it was open that names of other persons may also be added in it with the permission of Baba Zaheen Shah Taji. The list, photocopy of which has been filed does not mention the order of priority or any instruction that the appointment will be in the same order in which it has been mentioned at page
433. This book was published in the year 1972 and Baba Zaheen Shah Taji, died in the year 1978.
5. During this period of 6 years it is possible that the list of Khulfa may have been changed or some more persons may have been added to it. In the circumstances the list published in 1972 prima facie cannot be considered to be the final list which could not be altered.
6. ' Mr. S. Izhar Haider Rizvi, the learned counsel for defendant No, 1 has pointed out to certain facts to show that during the lifetime of Baba Zaheen Shah Taji defendant No, 1 had been appointed as Sajjada Nasheen. These facts have been taken out from the Taj Magazine which contains articles and photographs which establish that Baba Zaheen Shah Taji in his own lifetime had performed the ceremonies of "Dastar Bandi" on 31-5-1973. A photograph taken on this occasion has also been published at page 218 of Monthly Magazine "TAJ" (May to June, 1980). It has also been stated that the defendant on the last days of Baba Zaheen Shah Taji defendant No, 1 had performed the ceremony during. Urs. These facts prima facie establish that after the publication of the list of Khulfa in the year 1972 defendant No, 1 was nominated as Sajjada Nasheen. Prima facie! It seems that the list of Khulfa published earlier was amended and defendant No, 1 had been appointed as the Sajjada Nasheen. This prima facie finding is only on the basis of the averments made in the affidavit and the documents that have been produced on the record and is only for the purposes of deciding this application without in any manner affecting the merits of the case which will be decided after the evidence has been recorded.
7. ' The provision of Order XL, rule 1, C. P. C. Can be pressed in service where it appears to the Court to be just and convenient to appoint a receiver. It is invoked to prevent the ends of justice from being defeated. A party seeking relief under Order XL, rule 1, C. P. C. Is required to make out a prima facie case, establish his title or substantial interest in the property coupled with the fact that the property is being wasted, mismanaged or there is every likelihood of its being alienated and wasted. The applicant by affidavit or otherwise should not only allege specific instances of such facts but must prima facie establish them. The effect of appointment of receiver is to dispossess the person in possession for the benefit of all those who may ultimately be found to hold that property. In the present case firstly the plaintiffs have not been able to establish their interest in the property or present right to remove defendant No, 1, secondly, they have further failed to establish a prima facie case that defendant No, 1 is not legally authorised Sajjada Nasheen of the Khanqah-e-Tajia and thirdly, it has not been established that the defendant No, 1, is mismanaging, wasting or misappropriating the property. It is to be borne in mind that Order XL, rule 1, C. P. C. Does not authorise the Court to remove from possession or custody of property of any person whom any party to the suit has not a present right so to remove. In these circumsta nces the application is dismissed.