1. ' The plaintiffs have purchased through a registered sale-deed from Raj Muhammad Ibrahim who was the transferee of the evacuee interest of 0-4-3-/4 paisa measuring 10 guntas equivalent to 1210 sq. Yds. In Survey No, 616, Deh Gujro Taluka Karachi. The total area of this survey number was one acre. Except defendant No,3 all the parties are co-sharers. The plaintiffs filed Suit No,52/75 for possession of their share in the property on the basis of partition order made by the Rehabilitation Mukhtiarkar. In that suit all the co-sharers had not been joined as defendants therefore it was dismissed but a finding was given that the defendants are the rightful owner of the share purchased from Raj Muhammad Ibrahim and that the claim of defendant No,3 being in adverse possession was not accepted as he had stated that he had occupied the property with the permission of defendant No,l. The plaintiffs then filed the present suit for partitition, possession and mesne profits. There is no dispute about the share of defendants Nos.1, 2 and 3 to 23 but the fact remains that the property has not so far been partitioned by metes and bounds. The defendant No,3 is in possession of five shops and open land. The plaintiffs had earlier filed an application under Order 39, Rules 1 and 2, C.P.0 and the Court had ordered the defendant No,3 not to transfer the property in his possession. In that regard reference can be made to order dated 2-3-1986 whereby the Advocate for the defendant No,3 had made a statement at the bar that defendant No,3 has neither raised any construction nor has any intention to raise the construction during the pendency of the suit. This undertaking was made rule of the Court by the same order. On other application Mr. Wasim Hamid Rizvi, Advocate was appointed Commissioner with the consent of the parties to inspect the plot and submit his report about the existing construction. The learned Commissioner submitted his report dated 13-3-1986 and also annexed with it a sketch of the site plan from which it is clear that five shops marked in red are in possession of defendants Nos.1 and 2 whereas four shops marked blue and another shop are in possession of defendant No,3 as claimed by him. There is an open land which according to the report is under cultivation. The plaintiff has alleged that now the open land is being used by furniture dealers who have stored their furniture.
2. The learned counsel for the defendant No,3 admits that the defendant No,3 has permitted them to use and occupy the said open land. According to Mr. Umrani this permission was granted after Suit No,52/75 was dismissed and before the present suit was filed. However, this statement is completely contrary to the report of the Commissioner according to which the open land was under cultivation and not used by the furniture dealers. Therefore, the occupation by furniture dealers with the permission of defendant No,3 seems to be after the inspection of the Commissioner. The plaintiff by this application seeks that a receiver of the property in dispute may be appointed.
3. ' Mr. Ashiq Ali Abdullah the learned counsel for the defendants Nos.1 and 2 has submitted that these defendants admittedly have 6 annas share in the property and are entitled to 1800 sq. Yards.
4. Whereas from 1975 they are in possession of shops of total area of 462.77 sq. Yds. Kr, Ashiq All Abdullah states that according to the admitted position they are,entitled to more land than what is in their possession therefore receiver should not be appointed in respect of the shops which are in possession of defendants Nos.1 and 2. Mr. Khalil-ur-Rehman the learned counsel for the defendants Nos.4, 19 to 26 supports the application of the plaintiffs. So far as the contention of defendants Nos.1 and 2 is concerned it seems that being shareholders and in possession of lesser area than what they are entilted to it would not be just and convenient to dispossess them or to appoint a receiver of that property.
5. ' The main opposition is from defendant No,3 and Mr.Umrani has contended that he is not a trespasser and has been in possession for the last 50 years with the permission of defendant No,1.
6. The defendants Nos.1 and 2 in their counter-affidavit have clearly stated that the defendant No,1 is in unauthorised occupation and has wrongly constructed shops and is in wrongful possession.
7. However, Mr. Umrani contends that as in the application there is no allegation of wastage of the property Receiver cannot be appointed and the interest of the plaintiffs is fully safeguarded by order of injunction and undertaking given by the defendant. In this regard the learned counsel has referred to 1982 CLC 707. There is no cavil with the proposition that Receiver can be appointed where property is wasted or is in danger of being wasted nor on mere allegation of misappropriation and mismanagement a Receiver can be appointed. It is correct that in his affidavit the plaintiff has not used the specific words of wastage or damage caused to the property. If the applicant has alleged facts which lead to the conclusion that property is being wasted or is in danger of being wasted it fulfils the requirement of law and it is not necessary to use specific words like wastage or damage. There is no allegation of wastage of property by using these words but admittedly the defendant No,3 has let out the open land to furniture dealers and he is realising rent from them. Such an act by a person who is prima facie in unauthorised possession of the land amounts to wastage and malversation of the property so far as the interest of the owners of the land is concerned.
8. ' The next contention of the learned counsel for the defendant No,3 is that the major portion of the land belongs to other shareholders and the plaintiffs are entitled to 1/4th share in the entire property and as their title is disputed and it is yet to be decided which part of the property will fall in their share Receiver cannot be appointed. The learned counsel has referred to 1974 SCM R 54 in which it was observed that where the plaintiff's title is disputed he can be asked for appointment of Receiver. Ln the present case titles of the plaintiffs are not disputed. It is fully established that the plaintiffs are entitled to 1 /4th share in the property. The question is in which part of the land will fall in their share if the partition is to be done by metes and bounds. The controversy does not mean that the title is disputed and therefore this contention has no force.
9. ' The learned counsel for the defendant No,3 then contended that the defendant No,3 is in possession of the plot for the last 50 years and it should not be disturbed because he even on showing of the plaintiffs in para. 14 of the plaint is the licensee of defendant No,l. The plaintiffs seem to have made this allegation because this was claimed by defendant No,3 and it was so observed in the judgment passed in Suit No,52/75. The defendants Nos.1 and 2 have now clearly denied it and term the defendant No,3 as unauthorised occupant. The learned counsel has referred to PLD 1976 Kar. 181 where it was observed that a person asking for appointment of receiver must show that property in the hand of other party is in danger of being wasted and if there is no such allegation for malversation or waste he cannot be dispossessed. In this authority the emphasis is not on the length of time during which a party resisting the appointment of receiver has been in possession of the land but the main principle is that where wastage and damage to property is not alleged a receiver cannot be appointed. In the present case as I have observed the conduct of the defendant No,3 after the disposal of the Suit No,52/75 and before filing this suit and even during the pendency of the suit as is established from the Commissioner's report has been far from bona fide.
10. He has hurriedly introduced third party interest by allowing furniture dealers to occupy the premises and this itself amounts to wastage of property.
11. ' The next case cited on behalf of the defendant No,3 is 1974 SCM R 110. In this case the appellants were admittedly in possession of the disputed land since 1949, and therefore, their possesson was not disturbed by appointing a receiver. Here the defendant No,3 has yet to be established that he is a licensee allottee or a trespasser. The last contention of the learned counsel for the defendant No,1 is that Suit No,52/75 was filed for possession and was dismissed on 4-6-1980 and as no appeal was filed the same question cannot be agitated it is barred by res judicata. The first suit was filed against three defendants and all the co-sharers were not made a party and on this technical ground relief was not granted. In the present suit there are 23 defendants and there is an additional prayer for partition. Therefore, the relief sought and the parties are not identical to those in Suit No,52/75. In the present case the principle of res judicata will not apply.
12. ' Having dealt with the objections raised on behalf by defendant No,3 the question arises whether a Receiver should be appointed for the entire property or for the shops and land in possession of the defendant No,3. The defendants 1 and 2 claim possession of two shops and three shops arc claimed to have been let out. The plaintiff has made a claim for mesne profits. The defendants Nos.1 and 2 are in possession of the shops in their own right and the plaintiff has no present right to dispossess them. The plaintiff's prayer in respect of shops in possession of the defendants Nos.1 and 2 cannot be granted.
13. ' The defendant No,3 has given an undertaking not to transfer the shops in his possession. This undertaking will safeguard the plaintiff's interest provided he also furnishes security for Rs,50,000 to the satisfaction of the Nazir within a period of four weeks.
14. I will not take up the question regarding the land which has subsequently been handed over by the defendant No,3 to the furniture dealers who is realising rent from them. There is no prima facie legal authority in defendant No,3 to do so. His claim of being in possession of this land does not get support from the report of the Commissioner. In order to save the land from further transfer it would be just and proper to appoint a Receiver for his part of the property. I, therefore, appoint Mr. Wasim Hamid Rizvi, Advocate as Receiver of the land mentioned in his report as open space under cultivation. He will take possession of this land and recover charge and fees from the occupants with all powers vested in a Receiver under Order XL., C.P.C.
15. Receiver appointed.