' This Revision Application has been preferred against the order, dated 3rd June, 1974 passed by the learned 1st Additional District Judge, Sukkur in Civil Miscellaneous Appeal No, 21/1972, whereby he set aside the order, dated 19th January, 1972, passed by the trial Court on an application made under Order XL,rule 1, C.P.C. and thus appointed a receiver to take over the property in suit.
' The brief facts of the case are that the respondent No, 1 filed Suit No, 1/1970 in the Court of Civil Judge, Shikarpur for specific performance of the contract of sale, dated 7th January, 1967.
According to the plaintiff, the respondents Nos. 2 to 7 agreed to sell the agri cultural land described in para. 2 of the plaint measuring 20-8 Acres situated in Deh Nai Lali, Taluka Shikarpur at the rate of Rs,200 per Acre. The respondent No,1 (hereinafter referred to as the plaintiff) paid Rs,3,600 to the defendants Nos. 1 to 6 and the balance sale consideration was agreed to be paid to the said defendants by the plaintiff at the time of execution and registration of the sale-deed before the Sub-Registrar. According to the plaintiff's case, the possession of the suit land was delivered to him by the said defendants pursuant to the said agreement in part performance.
' Before proceeding further, it may be mentioned here that the suit land originally belonged to one Wall Muhammad Khan alias Malang Khan, on whose death the same was inherited by the above- mentioned defendants Nos. 1 to 6 (presently respondents Nos. 2 to 7) and his two other sons Allah Bux and Qalandar Bux. Qalandar Bux on 5th October, 1974 sold his undivided 00.18 paisas share in the suit land to his brother Giuliani Samar by a registered sale-deed.
' The other brother Allah Bux subsequently died and his share was also inherited by the defendants Nos. 1 to 6. Thus, the defendants Nos. 1 to 6 claimed to be the exclusive owners of the aforementioned land in suit.
2. From the perusal of the record and for the purposes of disposal of application made under Order XL, rule 1, C.P.C. moved for appoint ment of Receiver by the plaintiff it may be stated that according to his case, being in possession of the said land in part performance of the agreement of sale he continued to enjoy the same and paid land revenue in 1969 and 1970. The plaintiff thereafter filed Suit No,1 of 1970 for specific performance of agreement of sale. It however appears that during the pendency of the said suit the applicants purchased the same land by a registered sale-deed, dated 8th August, 1970, and they dispossessed the plaintiff from the said land without due process of law as alleged by the plaintiff. These subsequent purchasers on their own application were joined in the suit as defendants No, 7 and 8 by the learned Civil Judge.
3. In the circumstances, the question came up before the trial Court for the appointment of Receiver on the application filed by the plaintiff, which, however, was dismissed by the learned trial Court by the order passed on 19th January, 1972 on the finding that the plaintiff has got no present right to remove the applicants/the defendants Nos. 7 and 8 from the land in suit. It was observed that though the said land was purchased by the applicants during the pendency of the suit the transaction was subject to the result of the suit.
4. Against the above order, Civil Misc. Appeal No, 21 of 1972 was filed, which was heard by the learned 1st Additional District Judge at Sukkur, who by the impugned order passed on 3rd June, 1974 set aside the above-mentioned order of the trial Court and directed the appointment of Receiver over the land in the suit.
5. It would be relevant to mention here the contentions of the rival parties as to the agreement of sale, dated 7th January, 1967 in favour of the plaintiff and the sale-deed, dated 8th August, 1970, which the applicants claimed to have been executed in their favour.
' As regards the agreement of sale dated 7th January 1967, its execution is admitted by the defendants No,2 to 6, though the defendant No,1 Ghulam Sarwar denied to have executed the same. Prima facie part payment by the plaintiff and delivery of possession of the land in suit and its enjoyment by the plaintiff for some period thereafter is established.
6. As regards the sale-deed, dated 8th August, 1970, it is the case of the applicants/defendants Nos. 7 and 8 that they purchased the land in question from the defendants Nos. 1 to 6 and 9 in good faith without notice of prior agreement of sale for valuable considerations by registered sale-deed.
' The defendants Nos. 2 to 6 however denied to have given any power of attorney to the defendant No,1. They also denied to have sold their shares in the land in question to the applicants/the defendants Nos. 7 and 8.
' The learned lower appellate Court on comparison of signatures on the agreement of sale in favour of the plaintiff with that of the said defendant No,1 on the written statement observed that the same tally with each other. It was also observed that the special power of attorney alleged to have been given by the defendants Nos. 2 to 6 was prima facie not proved. It is not necessary to discuss the reasons which led to the learned Court below to have arrived at these conclusion, as at this stage we are considering the question of necessity of appointment of a Receiver and determine if it is just and convenient to do so.
7. In .view of the circumstances stated above, the facts which emerge are that the plaintiff has prior agreement of sale dated 7th January, 1967 in his favour which is supported by the defendants Nos.
2 to 6 i.e same of the co-owneRs, Part payment of the sale consideration made by the plaintiff and delivery of possession of the land in suit in part performance of the agreement of sale to the plaintiff also appears to have been, prima facie, made out. The defendant No,1 has however denied to have executed any agreement of sale in favour of the plaintiff.
' Significant fact to mention here is the fact that the plaintiff is shown to have been dispossessed otherwise than by due process of law by the defendants Nos. 7 and 8 i.e, the present applicants.
8. On the other hand the sale-deed dated 8-8-1970 exists in favour of the applicants. This sale- deed and its execution is admitted by the defendant No,1 one of the co-owners but denied by defendants Nos. 2 to 6. The applicants admittedly are in possession of the land since after 8-8-1970 and that it would cause great hardship and dislocation they are dispossessed or removed at this late stage particularly when defendant No,1 one of the co-owners supports the sale in favour o the applicants. At the same time it cannot be overlooked that the applicants are shown to have interfered with possession of the plaintiff during the pendency of the suit.
' Thus it would be seen that serious disputes as to the title of the parties are involved in the suit.
9. In view of these disputes, the agreement of sale in favour of the plaintiff being supported by some of the co-sharers and denied by the other co-sharer, i.e, Ghulam Sarwar and, on the other hand, the sale-deed dated 8th August, 1970, is supportably Ghulam Sarwar and denied by the other co-sharers and further finding that the applicants are now in possession of the suit land since 1970 and that appointment of Receiver was stayed by the order passed by this Court on 3rd July, 1974. I am of the opinion that the interests of justice would be met by putting the applicants/the defendants Nos. 7 and 8 to terms.
10. After hearing the learned counsel for the parties and being of the opinion that Rs,500 per annum, of fixed, as compensation, to be paid by the applicants to the plaintiff from the date of his dispossession till the decision of the suit would serve the ends of justice and protect his interests, I direct that on the applicants' furnishing surety in the sum of Rs,6,500 at the rate of Rs,500 per annum for the period from 8th August, 1970 till 8th August, 1983 the appointment of Receiver shall be stayed. The surety shall be furnished to the satisfaction of the trial Court within a period of 6 weeks of the passing of this order. It is further directed the applicants shall also continue to deposit Rs,500 cash for every subsequent year till the disposal of the suit. In case the surety is not furnished in the aforementioned period if the applicants fail to deposit Rs,500 for any year, thereafter, the Receiver as directed by the appellate Court shall take over tip- land in dispute.
' The amount of security and cash directed to be deposited as above shall be paid over to the plaintiff in case he succeeds in the suit.
' Subject to the above observations this Revision Petition stands disposed of.
' It is clarified that any observations made as above by this Court or any of the Courts below on merits are tentative in nature and shall not prejudice the trial of the suit on its merits. , order accordingly.