' Brief facts leading to this petition are that petitioner No,1 filed a suit for declaration, where she averred that she being the real daughter of Rahimyar Khan, predecessor-in-interest of the parties was owner of the suit property to the extent of 1/10th share.
2. The respondents though admitted that petitioner No,1 was the daughter of the aforesaid Rahimyar Khan but pleaded that the parties were governed by the custom and, therefore, petitioner No,1 was not entitled to inherit the property in dispute.
3. The petitioners, along with the suit filed an application under Order 40, Rule 1, C.P.C. For the appointment of receiver for 1/10th share of the income of the suit property. However, this application was dismissed by the learned trial Court vide its order, dated 3-1-1993.
4. Learned counsel for the petitioners submitted that since it was not disputed that petitioner No,1 was real sister of respondents Nos.1 and 2, the application filed on behalf of the petitioners of the appointment of receiver was wrongly rejected by the learned trial Court. In this respect, he placed reliance on Mujeebur Rchman Alavi and 3 others v. Alvia Tabligh Trust, Karachi and 11 others 1981 CLC 175 and Rehmat Sons Ltd. v. Saeed Tourist Enterprisers and 4 others 1982 CLC 2667. He adds that the plea that the parties were governed by the customs was not available to the respondents as they being Muslims were governed by Sharia. In this behalf, he placed reliance on Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Enforcement of Shariah Act, 1991.
4. It is correct that a receiver may be appointed in a declaratory suit but there must be an allegation that the property was in danger or being wasted. In fact such an allegation was a sine qua non for the appointment of receiver. In Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal and 7 others PLD 1975 Lah. 492, it was observed as under: "I have already dealt with question whether the plaintiff had a prima facie case and I have held that he had a prima facie strong case. But this does not conclude the matter. A Receiver can be appointed if it is just and convenient to do so. Appointment is not as a matter of course. It is discretionary with the Court. Order XL, Rule 1, C.P.C. Does not lay down any clear principles governing the exercise of discretion but these principles have been laid down by the Superior Courts. One of these principles is that the power to appoint a Receiver should be sparingly used.
Another principle is that it should be exercised for the safeguard of the interest of all the parties as well as the property which is subject-matter of the litigation. A third principle is that the possession of persons bona fide in occupation of the property should not be disturbed unless there are allegations of wastage or dissipation of property or apprehension of irreparable loss and injury.
' In the present case the only ground of dissipation is the apprehension of alienation of property by Sardar Wali Muhammad. After the issuance of temporary injunction this apprehension should be allayed. In the petition under Order XL, Rule 1, C.P.C. The apprehension is only of misappropriation of movables. But the bulk of the property in dispute consists of considerable agricultural land. In the absence of any definite allegation of wastage, dissipation, misappropriation, or malversation of property in dispute the discretion under Order XL, Rule 1, C.P.C. Cannot be exercised."
' Further, the respondents have been in possession of the property in dispute since 1942 and during all this period, no action was taken by the petitioners to have its possession. In this respect, reference can be made to Mst. Ghulam Zainab and 7 others v. Mst. Tahira Sultana and 3 others PLD 1977 Lah. 830, wherein it was observed as under: "The petitioners are continuing in possession since 1947 and, according to their version, since before the death of the original owner. During all this time no action was taken by the respondent- applicant or her father against the alleged pilferage. Parties who have acquiesced in property being enjoyed against their own alleged rights cannot, except in special circumstances, come to the Court for a Receiver. It is held in Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others that showing of a prima facie case was not enough. When there was no allegation of malversation or waste made against person in possession for more than 18 years, he cannot be dispossessed by appointment of a Receiver merely on the ground of difficulty in recovering profits or property in event of success of the applicant.
' The learned counsel for the respondents, on the other hand, cited a few authorities on the advisability of appointment of Receiver and submitted that it was appropriate where there was an allegation of misappropriation of partnership funds, but it cannot be lost sight of that the principle in a suit for dissolution of partnership is different from the one for partition. In Muhammad Ismail Ali Charan v. Pakpor Ceramics Ltd. It is laid down that if a suit was for dissolution of a firm and the plaintiff alleged exclusion and not waste or malversation, the Court would appoint a receiver from among the defendant partners, but if the plaintiff showed that there was a reasonable apprehension of waste or malversation of the firm's assets, the Court would remove the defending partners from the management of the firm and appoint the plaintiff or a third party as an interim receiver. It is, therefore, evident that a suit for rendition of accounts and dissolution of partnership would require the appointment of a receiver in normal circumstances, but such a necessity is very meager in a suit for partition unless there is an allegation of a substantive waste."
5. It may be mentioned here that the facts of the cases relied upon by learned counsel for the petitioners were not similar to the facts of the present case.
6. The possession of the respondents shall be presumed lawful unless it declared otherwise by any Court of law. I am, therefore, of the opinion that it will not be proper to dispossess them by appointing a Receiver at this stage.
' The upshot of the above discussion is that this petition is without any merit and is hereby dismissed in limine. However, in the peculiar circumstances of the case, I am inclined to direct the learned trial Court to decide the matter within six months of this order.