1. A. S. CHOWDHURY, J.----In this revisional application petitioner's properties are being taken possession of by a Receiver appointed in a suit instituted by the plaintiff and it is claimed that the learned Subordinate Judge erred in law in rejecting the prayer for restraining the Receiver from taking possession thereof.
2. The plaintiffs instituted a suit in respect of a Wakf property and at their instance a Receiver has been appointed in respect of the properties described in the schedule of the plaint. Some of the properties ownership of which is claimed by the petitioner have been wrongfully included in the said schedule petitioner's prayer before the learned Judge was to restrain the Receiver from taking possession of their properties as they were not parties to the suit.
3. Mr. Md. Jani Alam appearing on behalf of the petitioner invites our attention to sub-rule (2) of rule 1 of Order XL of the Code of Civil Procedure which reads as follows :- "Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person (A) whom any party to the suit has not a present right so to remove."
4. Mr. Jani Alain says that he is not a party to the suit. Therefore, the plaintiffs pave no right to remove him from the possession of his properties. Learned Subordinate Judge observed : "I am of opinion that the petitioners have not been able to make out their prima facie title and possession in the eight properties claimed by them."
5. We are of opinion that the learned Subordinate Judge has failed to appreciate that it would be a dangerous position if properties are included in the schedule and taken possession of the same by a Receiver appointed in a proceeding to which the claimants are A not parties. In such a situation what is necessary is that the Court must make a thorough investigation into the claim and arrive at the truth or otherwise of the allegations of the peti--tioners who are not parties to such a suit. This, the learned Judge has failed to do. On this ground alone the impugned order should be set aside and remanded to that Court for at horough examination of the respective claims.
6. The view expressed above finds support in the case of Hamida Rahman and another v. Jamila Khatun and another (AIR 1921 Cal. 298). In that case a Division Bench of the Calcutta High Court consisting of Newbould and Suhrawardy, JJ. Held that on an objection being taken by person who were no parties to the suit claiming the properties to be theirs and in their possession, the Court was bound by clause (2) of rule 1 of Order XL, to come to a definite finding as to the truth of these allegations before it could make an order directing the Receiver to take possession of the properties.
7. A similar view has also been expressed by Khaleel Ahmed, J. In a Division Bench case of the Patna High Court in the case of Prahlad Pd. Modi and another v. Tikaitni Faldani Kumari and another (AIR 1956 Pat. 233). In that case Ahmed, J. Delivering the judgment of the Court held that a third party in possession having a bona fide paramount title was not affected by the appointment of a receiver in a suit relating to that property. In that view of the matter, we are clearly of opinion that the respective claims should be properly examined by the Judge before the receiver can take possession of the properties of the petitioners.
8. Mr. Subhan strenuously challenges the maintainability of this petition on the ground that the Administrator of Wakf has not been made a party to this proceeding as required under section 81 of the East Pakistan Wakf Ordinance, 1962. Mr. Alain's contention, however, is that the expression in respect of any wakf property occurring in subsection (1) of section 81 makes it clear that the Administrator is to be made a party only when the property is a wakf property and so far as the petitioners are concerned they are claiming to be owners of this property. We are of opinion that in the ends of justice we should ask learned Subordinate Judge to make a careful investigation as to the claims of 'the respective parties as we have found that he has not fulfilled the requirements of law this revisional application should not fall. It is not necessary for us to express any firm opinion in this behalf, inasmuch as the question will be investigated by the trial Court in the suit in which the administrator is already a party.
9. NURUL ISLAM, J.--I agree.