' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court, dated 8-12-1999, whereby the order of trial Court rejecting the application of appellants, herein, for the appointment of Receiver was maintained and appeal was dismissed.
2. The brief facts of the case are that Gulzar Hussain, the predecessor-in-interest of appellants, herein, Jan Muhammad, respondent No,1 and Muhammad Ismail, pro forma-respondent No,15, are real brothers. The appellants, herein, brought a declaratory suit with consequential reliefs of partition and possession of Plot No, 5-A, situate in Sector C/1 Mirpur, measuring 1 Kanal over which 9 shops and some underground rooms were constructed; they also prayed for decree of recovery of Rs, 1,21,200 their share in the rent. According to the case of plaintiffs-appellants, the said plot was allotted to Gulzar Hussain, their predecessor-in-interest, and Jan Muhammad respondent No,1 in equal share. Thereafter, they jointly constructed the aforesaid shops and rooms and pro forma- respondents Nos. 2 to "14 were tenants under them. It is further the case of the appellants that during the life time of Gulzar Hussain, their predecessor-in-interest, the half of income of rent was regularly paid to him by respondent No,1, but after his death, respondent No,1 refused the payment of their share in the rent from July, 1996 to June, 1998. Thus, they also sought the recovery of outstanding amount of Rs,1,21,200. They further alleged in their suit that Muhammad Ismail, pro forma-respondent No,15, obtained compromise decree from Civil Court according to which Gulzar Hussain and Jan Muhammad, respondent' No,1 were in the joint ownership of the property in dispute in equal shares, while land measuring 6-1/2 marlas along with two shops and three underground rooms was in the ownership of Muhammad Ismail. Thus, it was alleged that the said compromise decree further established that Gulzar Hussain, the predecessor-in-interest of appellants, was sharer in the suit land to the extent of one half share. The plaintiffs appellants also filed an application for the appointment of a Receiver of the suit land. The objections were filed by respondent No,1 to the said application. The trial Court after hearing the arguments dismissed the application; the appeal filed by the appellants, herein, to the High Court also failed. It is the aforesaid order of the High Court whereby their application for the appointment of Receiver under Order XL, Rule 1, C.P.C., was rejected against which the present appeal has been filed.
3. Raja Hassan Akhter, the learned counsel for the appellants, has contended that the appellants have brought on record material in form of allotment permit of the plot and civil Court decree which, prima facie, establishes their case that Gulzar Hussain, the predecessor-in-interest of appellants, was owner to the extent of one half share in the suit land and after his death, they inherited the said share. The learned counsel has contended that the Courts below have committed error in rejecting the application for the appointment of the Receiver on the ground that as respondent No,1 is in possession of the suit land, he cannot be dispossessed from the same by appointing a Receiver. He has contended that it is well-settled principle of law that if it is, prima facie, established by a party that it is just and convenient to appoint a Receiver of immovable property, the Court should exercise discretion in favour of the party seeking such appointment. He has argued that the important question as to whether the appellants had title to the suit land which has been all together ignored. He has contended that normally the possession of the disputed property in cases like one in hand is with the defendant and this cannot be made a ground for the rejection of an application for appointing a Receiver. He has relied upon a case reported as Aftab Ahmed Mufti and another v. Mst. Seema alias Zareena 1988 CLC 1567, it was held that the Court can appoint Receiver if it is just and convenient in the circumstances of the case. It was held that mere fact that defendant was in possession of the suit land was not a sufficient ground to refuse the appointment of the Receiver. Because generally the suit land is in the possession of the defendant. It was further observed that if it is established that, prima facie, the property is likely to be damaged or the interest of the plaintiff in the property is likely to be adversely affected, the Court should appoint Receiver in such case.
4. In reply Ch. Muhammad Azam Khan, the learned counsel for respondents, has argued that as the respondent No,1 is in possession of the suit land as an owner, he cannot be deprived of enjoying the same by disturbing his possession. He has argued that the compromise decree relied upon by the plaintiffs has been challenged by filing a suit which is sub-juice in the trial Court. The learned counsel has argued that in fact Jan Muhammad, respondent No,1, was exclusive owner of plot in question and he made constructions over the same. He has controverted the contentions of the plaintiffs-appellants that respondent No,1 had been paying the share in rent to Gulzar Hussain, predecessor-in-interest of appellants herein. The learned counsel has contended that the discretion to appoint a Receiver cannot be exercised to the detriment of the party in possession specially so when there is no allegation that the suit land is likely to be destroyed if a Receiver is not appointed. The learned counsel referred to the, following authorities:--- ' In a case reported as Muslim Commercial Bank Limited v. Panama Trading C. (Pvt.) Ltd. 1998 MLD 1844, it has been held that while appointing Receiver the Court must take into consideration the facts as to whether, prima facie. The plaintiff has title to the suits land whether the property, is in danger of being wasted if the Receiver is not appointed and it is just and convenient to appoint a Receiver. It was further observed that as it was not established that plaintiff handed over the administration of the Company in pursuance of the agreement of sale, relied upon by him, it was not just and convenient to appoint a Receiver, specially so when it was difficult to hold that the Guards allegedly employed by the plaintiff Bank at the Tank Terminals were forcibly pushed out by the defendants as was alleged.
' In a case reported as Bhupendra Nath Mookherjee v. Monohar Mukherjee AIR 1924 Cal. 456, it was observed that Court should exercise great caution in dispossessing the defendant in possession and appointing a Receiver but where the joint property is exclusively enjoyed by none of the parties, the Court may appoint Receiver.
' In a case reported as Rais Tayyab and 2 others v. Raza Muhammad and another 1985 CLC 2600, it was held that it is for the concerned Court to see as to whether it was just and convenient to appoint a Receiver in a case. It was further held that as the petitioners failed to show that "Haq-e- Malikana" was ever paid to them by the respondent, the application for appointing Receiver of the crops which had been taken away from the field was dismissed.
5. We have given due consideration to the points raised at the Bar. It may be observed that under Order XL, Rule 1, C.P.C., the discretion vests in a Court to appoint Receiver of suit land if it is just and convenient to do so. Obviously, what is just and convenient is to be seen in light of facts of a particular case. In the instant case, there is a joint allotment permit of the plot in dispute in favour of Gulzar Hussain, the predecessor-in-interest of appellants, and Jan Muhammad, respondent No,
1. There is also a compromise decree passed by civil Court, according to which, the property in dispute was in the ownership of Gulzar Hussain and Jan Muhammad in equal share. The respondent has filed written objections, wherein he has made a total denial of any interest of Gulzar Hussain or for that matter, of the appellants, herein, in the suit land. So far as the compromise decree is concerned, the respondent has stated that he has challenged the said decree by filing a civil suit. Obviously, the said decree holds the ground till the same is set aside.
Thus, it cannot be said that there is no, prima facie, case of the appellants, herein, that they are owners in the extent of one half share in the suit land.
6. The next question which arises is as to whether it would be just and convenient to appoint a Receiver of the property in dispute during the pendency of the suit, it may be pointed out that while making order one way or the other, it is also important to take into consideration that if ultimately the suit filed by plaintiff's is decreed, they may be obliged to indulge in further litigation for the recovery of their share in the rent etc. There is ample authority in support of proposition that where a party establishes a joint title in the suit land with defendant which is denied by him, as is in the present case, the Receiver shall be appointed because it would be just and convenient to do so for keeping the scale of justice even. A reference may be made to the following authorities:--- ' In a case reported as The Crown v. Bar Association, Sukkur PLD 1956 Sindh 84, it has been observed that as the defendant un-successively denied the plaintiff to be a partner, it was just to appoint a Receiver, despite the fact that defendant did not commit any misconduct.
' In a case reported as Saravana Mudahar and others v. Singaravelu Mudaliar and others AIR 1938 Madras 730, in a partition suit filed by the co-sharer it was held that as the plaintiff was deprived of his share of the produce during the pendency of the suit, it was just to appoint Receiver to harvest the crops so as to ensure the fair share of the plaintiff in the produce of the land.
' In a case reported as Basant Ram v. Dasondhi Mal and others AIR 1929 Lah.497, it was held that as the co-sharer in possession was enjoying the profit of the joint property exclusively while other was deprived of his share, it was just to appoint a Receiver.
' In a case reported as Sahijram Rup Chand and others v. Alu Tundu and another AIR 1942 Sindh 60, it was held that in a partition suit the plaintiff's share was specified but the property was undivided, it was just to appoint a Receiver.
' In a case reported as Ghulam Hussain v. M. Riazuddin 1983 CLC 1111, it was held that as, prima facie, the plaintiff was a partner of the firm, it was just to appoint a Receiver in the suit for the dissolution of partnership and rendition of accounts; it was not necessary to postpone the matter till the issue regarding the existence of non-existence of partnership was decided.
' In a case reported as Mst. Ghazala Zakir v. Muhammad Khurshid PLD 1989 Karachi 350, it was held that where a claimant was able to bring the suit within the parameters of Order XI, Rule 1, GP.C. By establishing that it was just and convenient to appoint a Receiver, the same should not be refused on the ground of harshness harsh less ness must be directed against the wrong-doer and not against the aggrieved person. Thus, a Receiver was appointed for protecting the interest of the party concerned.
7. It is evident from the case-law discussed above, that, prima facie, the plaintiffs appellants have established their title to the suit land to the extent of 1/2 share, which is totally denied by the defendants. Thus, in our view, it is just and convenient to appoint a Receiver in the case, specially so when the income of joint property is exclusively being utilized by defendant No,l. Therefore, we accept the appeal, set aside the judgments of the Courts below and direct that after receiving the file, the trial Court shall appoint a Receiver of the property in dispute who shall take over the management and control of whole of the property including shops etc. He shall collect the rent of the shops etc. From the pro forma-respondents concerned, shall deposit the same in same Bank and keep an account of income and expenditure according to the directions of the trial Court. The appeal is accepted as indicated above with no order as to costs.