' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by leave of the Court, is directed against the judgment of the High Court passed on 21-6-1999, whereby the appeal filed by the respondents, herein, was accepted and the order of Additional District Judge, Muzaffarabad was set aside.
2. The necessary facts, giving rise to the present appeal briefly, stated, are that the appellant herein, purchased land measuring 3 Kanals, 4 Marlas, situate in village Karian Darar, Muzaffarabad, comprising Survey No,50, through a registered sale-deed, dated 18-12-1996, for a consideration of Rs,4,00,000 from Aziz-ur-Rehman, respondent No,6. According to the appellant in pursuance of the sale-deed the possession of the suit land was transferred to him and a mutation to this effect was also attested in his favour. Wherein the factum of possession having been delivered to the appellant was also recorded.. Respondent No,1 filed a suit for perpetual injunction on 17-12-1996, and alternatively prayed for a decree on the basis of right of prior purchase. A cross-suit was filed by the appellant, herein, seeking perpetual injunction against respondents to refrain from interfering into his possession. In both the suits the trial Court issued temporary injunctions in terms that status quo should be maintained. The afore stated suits were pending when the appellant, herein, moved an application to the trial Court for the attachment of the suit land. The trial Court rejected the application but his appeal to the Additional District Judge was accepted and one Amirullah was appointed as receiver of the suit land vide order, dated 21-11-1998, and the land was given in his possession. The respondents feeling aggrieved by the order of Additional District Judge filed an appeal before the High Court which set aside the order of appointment of receiver by the Additional District Judge and restored that of the trial Court vide the impugned judgment, dated 21-6-1999. It is the aforesaid judgment of the High Court against which the present appeal has been filed by the appellant, with the leave of the Court.
3. Raja Muhammad Hanif Khan, the learned counsel for the appellant, has argued that possession of the suit land was with the appellant as is evident from the recital made in the sale-deed and attestation of mutation in his favour, wherein a note was entered by Patwari of the area that possession of the suit land in pursuance of the sale-deed has been delivered to the appellant. The learned counsel also contended that a false criminal case was registered against appellant under section 447, A.P.C. Which was ultimatel y dismissed, whereas the case registered at the instance of appellant against respondents is sub judice in Tehsil Criminal Court. The learned counsel pressed into service the submission that the High Court was not justified in holding that no case for violation of the temporary injunction issued by the trial Court was established because from the criminal cases, referred to above, it transpires that respondents had been repeatedly interfering in the possession of appellant. Thus, the trial Court was moved for attachment of the suit land and appointment of its receiver.
4. Ch. Muhammad Ibrahim Zia, the learned counsel for respondents, controverting the arguments advanced by the learned counsel for the appellant, has contended that the trial Court should have first decided the application for violating the interim injunction and thereafter, should consider the question of attachment. The learned counsel contended that the trial Court rightly reached the conclusion that the appellant was not in possession of the suit land and in order to take possession from the respondents he moved an application for the attachment of the suit land and for appointment of receiver. The learned counsel has contended that the Additional District Judge advanced no cogent reason for accepting the application moved by the appellant for attachment of suit land and appointment of its receiver. The mere fact that the appellant, herein, purchased the suit land from Aziz-ur-Rehman, vendor, does not justify the acceptance of application for attachment and the appointment of receiver.
5. We have given our due consideration to the matter and perused the relevant record. The learned trial Judge in his order, dated 8-7-1998, has dealt in detail with the question of possession of the suit land. It was observed by the trial Court that prima facie the suit land sold by vendor from the specific survey number appears to be beyond his share. A vendor is competent to alienate a land from specific survey number provided he is found to be in its exclusive possession and the sale would be subject to partition by meets and bounds. The learned trial Judge also observed that the vendor Aziz-ur-Rehman appeared before him on 15-6-1998, as such his statement was of vital importance with regard to claim of possession of suit land by the parties. Before the trial Judge the vendor stated that on account of his service in Pakistan he did not visit the spot after the sale- deed, however, he visited the suit land 1-1/2 years before. Thus he could not state as to in whose possession the suit land was. The trial Judge further observed that as the vendor transferred the suit land from specific survey number which was not in his exclusive possession, prima facie the vendee-appellant could not get the possession of the suit land and to obtain the possession from respondents. The trial Court opined that the application for attachment of the suit land and appointment of receiver were not justified. It was further observed by the trial Court that it is not the spirit of Order XL, rule 1 and section 94 of the Code of Civil Procedure that an applicant should move the Court for attachment of the land and appointment of its receiver merely for the purpose of obtaining possession from the opposite-party. The learned trial Court in its order left it open to take appropriate action when the need for that arises.
6. The learned Additional District Judge vide his order, dated 21-11-1998, accepted the application for attachment of the suit land filed by the appellant on the sole ground that the suit land had been purchased by the appellant for a consideration of Rs,4,00,000 and in pursuance of the sale- deed the possession had been given to the appellant. The aforesaid ground, in our view, is not tenable of the simple reason that the trial Court had rejected the application moved by the appellant on cogent grounds which have not been adverted to by the Additional District Judge.
7. We have also perused the documents relied upon by the appellant in support of his possession, i,e, the copy of sale-deed and a note of Patwari appearing on the mutation attested in favour of appellant. The mere fact that there is a recital in the sale-deed that possession had been given to the vendee and that the Patwari of the area has entered a note in the mutation that possession had been delivered in pursuance of the sale-deed to the vendee-appellant is not sufficient by itself to ignore the well-reasoned judgment passed by the trial Court in rejecting the application for attachment of suit land and appointment of a receiver. In a case reported as Muhammad Siddique and another v. Muhammad Latif and others 1996 SCR 299, it was observed by this Court as follows:- -- "In our view the material before the trial Court was insufficient in the eye of law for passing an order of attachment of property as visualized by Order 40, rule 1, C.P.C. It is indeed correct that under this Order the Civil Court is vested with wide powers to attach the suit property and to preserve it from the danger of being wasted or alienated but this power is to be used sparingly and under exceptional circumstances. The appointment of receiver has been recognized as one of the harshest remedy allowable under the Code and it is allowed only in very exceptional cases. The party seeking appointment of receiver, therefore, has to show some emergency or danger or loss demanding immediate action. The principles for exercise of discretion have been laid down by the superior Courts. One of these principles is that the power of appointment of a receiver would be sparingly used. Another principle is that it would be exercised for the safeguard of the interest of all the parties as well as the property which is subject-matter of litigation. The third principle is that possession of persons bona fide in occupation of the property would not be disturbed unless there are allegations of wastage or dissipation of property or apprehension or irreparable loss or injury.
The plaintiff applying for the attachment of property must show, prima facie. That he has strong case and a good title of the property and also that defendant does not have a good title to the property."
8. In our view the appellant has failed to make out any case for attachment of the suit land and the appointment of a receiver as visualised by Order XL, rule 1 of the Code of Civil Procedure. In this view of the matter the High Court by setting aside the order of Additional District Judge, committed no illegality warranting our interference.
9. In the light of what has been sated above, finding no force in this appeal, the same stands dismissed. The stay order issued by this Court on 11-8-1999, also stands vacated. However, in the circumstances of the case we pass no order as to costs, so far as this Court is concerned.