1. This Revision Application is directed against the order dated 10-3-1976 passed by the I/C District Judge, Khairpur, in appeal whereby he affirmed the order dated V-7-1975 passed by the learned Senior Civil Judge, Khairpur, appointing Receiver in respect of the suit land.
2. Briefly, the facts are that respondent No. 1 Rahim Btu filed a suit against the applicants and respondents Nor;. 2 and 3, namely, Mobammad Saleem and Mohammad Saqlain, for possession and mesne profits alleging that Survey No& 502/1-4. 503/0-23 and 504/0-22 of agricultural land situated in Deh Gahno Kalhoro, Taluka and District Khairpur were sold to him by the defendant/respondent No. 2, Mohammad Salim, as attorney of one--Mohammad Ahsan, the atlottee of the survey numbers, under registered sale deed executed on 24-5-1974, but in of about June, 1974, the applicants at the instance of the defendants-respondents Nos. 2 and 3 encroached upon the land for which he approached the Revenue authorities and local adminis--tration for restoration of the land bat the Mukhtiar kar after holding the applicants to be encroachers advised him to seek legal remedy from the Court and hence the suit. Alongwith the suit, the plaintiff- respondent No. 1 flied an application under Order XL, rules 1 and 2, C. P. C. For appointment of Receiver in respect of the suit land alleging simply that the suit land was under waste.
3. The application for receivership was resisted and objections were filed on behalf of the applicants as well as the respondents Nos. 2 and 3, wherein-- title of the plaintiff -respondent was denied and it was further denied that any waste was committed in the suit land. The defendant-respondent No. 3 Mohammad Saqlain, while denying the title of the plaintiff- respondent No. 1, alleged in his counter-affidavit that the survey numbers In question stood allotted to his father, Soofi Mohammad Sabtain Kaami, in 1957 under a. Permanent settlement scheme and Parchi Taqseem was also issued to him but subsequently the allotment was wrongly cancelled and the survey numbers were wrongly and fraudulently allotted to Mohammed Ahsan for which he filed an application under sections 10 and 11 of the Displaced Persons (Lands) Act, 1958, before the Deputy Settlement Commissioner, Khairpur which was yet pending decision.
4. The trial Court, however, granted the application and appointed a Receiver for the suit land, mainly on the ground that mere pendency of the application under section6 10 and 11 made by the respondent No. 3 Mohd. Saqlain was not enough to deny the title of the plaintiff ---respondent No. 1 and, therefore, the defendant-respondent Mohammad, Saqlain prima facie had no title over the suit land for which reason it was' quite possible" that the property may not have been looked after properly and may be under waste as alleged by the plaintiff. Being aggrieved, the applicants and the respondent No. 3 Mohammad Saqlain went in appeal wherein defendant-- respondent Mohammad Saqlain reiterated that he was the owner of the suit land and that be had leased out the land to the applicant who were therefore in its lawful possession. At the hearing, however, defendant-respondent Mohammad Saqlain entered into a settlement with the plaintiff respondent No. 1 whereby he recognised the plaintiff-respondent No. 1 as the owner of Survey Nos. 503 and 504 while the plaintiff-respondent No. 1, in turn, recognised the defendant-respondent No. 3 Mohammad Saqlain as owner of Survey No. 502, the latter conceding that Survey No. 502 bad been wrongly cancelled from the allotment of the father of the defendant-respondent No. 3 Mohammad Saqlain and, therefore, was wrongly Bold to him by the allottee Mohammad Ahsan. As a result of this settlement, the defendant-respondent No. 3 Mohammad Saqlain did not press the appeal on his o art behalf and was pressed by the present applicants only the learned District Judge relying on the above settlement, dismissed the appeal by holding that since the applicant3 had failed to make out their prima facie title to the suit land, they had no right to be on the suit land. Hence this revision application by the present applicants.
5. Mr. A. Fateh Memon, learned counsel for the applicants, contended that the applicants were in bona fide possession of the survey numbers in the suit land as these numbers had been admittedly leased out to them by the defen--dant-respondent No. 3 Mohammad Saqlain, from whom they subsequently purchased the said survey numbers under an agreement of sale dated 6-10-1974, and that the title of the plaintiff/respondent No. 1 B shim Bux was also in dispute as shown by defendant-respondent No. 3, Mohammad Saqlain, in his counter-affidavit filed against the appointment of Receiver which fact stood further proved by the very settlement reached between the plaintiff - respondent No. 1 and the defendant-respondent No. 3 Mohammad Saqlain in the appeal whereby plaintiff- respondent No. I conceded defendant-respondent Mohammad Saqlain to be the owner of the Sarvey No. 502; consequently, the applicants could not be validly dispossessed of the suit land by appoint--ment of Receiver by the trial Court. In support of his contention, the learned counsel relied upon 1974 SCMR 54 and PLD 1976 Kar. 181.
6. The learned counsel next contended that, in any case the plaintiff - respondent respondent No. 1 had completely failed to show that any waste in respect of the suit land had been or was being committed and even the trial Court only held that there was 'possibility' of was being committed, which however was not sufficient for appointing a Receiver and dispossessing the applicants of the suit land. The learned counsel lastly contended that the Courts below in deciding the interlocutory application have virtually decided the suit which is yet pending trial and have thereby overstepped their jurisdic--petition in passing the impugned order.
7. Mr. M. G. Dastgi:, learned counsel for the plaintiff respondent No. 1, in reply submitted that since the defendant-respondent No. 3 Mohammad Saqlain had no title of the suit land. And the application tiled by him under sections 10 and j l of the Act was also finally dismissed, he could not have validly passed on the title to the applicants and could not have even leased out the land to the applicants, who, therefore, had no right to be in possession of the land. The learned counsel next contended that since no counter---affidavit was filed denying the allegation of waste made in the affidavit filed by the plaintiff/respondent No.1. In support of his application far Receiver--ship, the order passed by the Court below appointing Receiver was fair and in support referred to PLD 170 Kar. 42, PLD 1970 Kar 49 Lah. 60, PLD 1974 SC 59 (7) and PLD .916 Kar. 181.
8. The question for consideration in this revision is whether the Courts below acted rightly in exercise of their jurisdiction by appointing Receiver --over the suit land.
9. Receiver is appointed whenever it appears to the Court to be both just and convenient to do so and it is well settled, as observed in PLD 1958 Lah. 288, that the discretion vesting in a Court of appointing a Receiver of ,property is to be sparingly exercised, and one recognised principle is that before the possession of the party is disturbed, it shall not be sufficient for the applicant to show prima facie case but it further must be shown that the property in possession of the opposite-party in danger of being wasted, and Sant Ram v. Ram Chand (36 RR 1910) is further authority for the proposition that a Receiver should n -it be appointed when the application is based, not upon any specific allegation of misconduct, but upon a mere apprehension that the defendant, though be has done nothing in the past, will after the institution of the suit proceed to waste the property.
10. There is no denying the fact that the applicants are in possession of the survey num6rrs in question and that they had been leased out these survey numbers and put into possession thereof by respondent No. 3 Mohammad Saqlain whose father had been allotted these survey numbers.
11. Indeed, respondent No. 3 Mohammad Saqlain admitted, even in this Court. That he had given the survey numbers in question on lease to the applicants in 197 for the year 1974 and in 1974 for the year 1975, and put them into possession thereof, although he denied that he had agreed to sell the survey number, to the applicants us claimed by them, and further alleged that the lease expired in 1975, and the learned counsel for the plaintiff/respondent No. I did not controvert the above statement of Mohammad Saqlain. It is also a fact that the plaintiff/respondent No. 1 had purchased the suit land long after it had been leased out to the applicants. In these circumstances, the applicants could not be dispossessed of the, suit land by appointing a Receiver unless it was further shown by the plaintiff/respondent No. 1 that the property A was in danger of being wasted.
12. The only allegation made in this regard by the plaintiff/respondent in his affidavit, filed in support of his applica--petition for appointment of Receiver, however, was "that the land in suit is under waste in the hands of defendants" (appellants herein), such bald allegation, made as ft was without giving any instance whatsoever in support, could hardly be said to be sufficient for showing that the suit land was in .Danger of being wasted. On the other hand, suit land being garden of date-- palm trees, there could be no real danger of waste being committed in respect thereof, unless it was shown that the applicants were cutting or damaging the trees or were committing any other act on the land which was likely to cause waste of the property. Far from showing it, the plaintiff respondent had not even alleged that any such act was done or was being done by the applicants on the property. Further, the applicants being in possession they would be interested in enjoying its fruits rather than com--mitting any waste, moreso, because of involved risk of liability to pay mesne profits and even damages in case the suit was decreed against them.
13. Both the Courts below appear to have completely ignored this aspect of the case and have decided the application for appointment of Receiver solely en consideration of title which was more appropriately germane to the decision of the; suit which had yet to be decided. The only reason assigned" by the trial Court for appointing Receiver is that since the applicants had failed to prove title, the property 'may' be under waste. This, to say least, was far from a finding that the property was being wasted. As, what the law requires is not that the property may be under waste land but that it is being wasted on account of specific acts of waste being committed on the suit land.
14. Further, the pleadings on record would show that defendant-respondent No. 3, Mohammad Saqlain, had, indeed, disputed the title of the plaintiff-- respondent No. 1 in the trial Court as well as in the appellate Court at the time of filing first appeal and had admitted the applicants to be in lawful possession of the suit land, arid even according to the settlement subsequently arrived at between him and the plaintiff/respondent No. 1, the latter admitted the title of the defendant- respondent No. 3 Mohammad Saqlain over Survey No. 502 impliedly conceding thereby that his title to the suit land, at least over Survey No. 502, was not disputed mala fide. Further, the applicants had also set up their own title to the suit land by virtue of an agreement of sale alleged to have been executed by the defendant-respondent No. 3 Mohammad Saqlain in their favour, which claim, whatever be its worth, had yet to be decided at the trial.
15. Be that as it may, even if it were to be assumed that the plaintiff4espon. Dent No. 1 had the title to the two survey numbers of the suit land. It only shows that he had succeeded in making out a prima facie case for the purposes of the application under Order XL, rules 1 and 2, C. P. C. But, as observed a above, this alone would not be sufficient for appointing a Receiver and dispossessing the applicants as it hart to be further shown that the snit lands was in danger of being wasted by the applicants, which fact the plaintiff respondent miserably failed to establish as observed above.
16. It will thus be seen that both the Courts below failed to decide the interlocutory application for appointment of Receiver on relevant considera--tions, and the learned counsel for the applicants is also justified in contending that perusal of their orders would show that they have virtually decided the suit which they ought not to have dope, as what was for consideration before them was an interlocutory application for appointment of Receiver and not decision of the suit, which was yet pending trial.
17. Mr. M. G. Dastagir, learned counsel for the plaintiff respondent No. 1 has contended that the plaintiff-respondent No. 1 had purchased the survey numbers in question from its allottee Mohammad Ahsan under a registered sale deed and since pendency of the application under sections 10 and 11 of the Displaced Persons (ands) Act, 1958 was not sufficient to deny the title of the allottee Mohammad Ahsan, particularly when the application was ultimately dismissed the respondent No. 3 Mohammad Saqlain had no title to the suit land, and then he could not pass on the title or grant lease to the applicants who, therefore, had no right to be on the land. I would refrain from making any further observations on this point. Lest they may prejudice the trial which is pending. Suffice it to say, this is a question for decision at the trial, rather than in an interlocutory application for appointing a Receiver for which something more was required to be established.
18. Learned counsel has next contended that since no counter. Affidavit was filed by the defendant in the suit denying the allegation of waste made by the plaintiff/ respondent No. 1 in his affidavit filed in support of the application for appointment of a Receiver. The allegation stood proved. I regret my inability to agree with the learned counsel. Firstly. The allegation of waste was indeed denied in the objections filed on behalf of the defendants in the suit. Further, the burden of proving waste lay on the plaintiff-respondent No. 1 and he cannot be said to have discharged the burden by merely making a bald allegation, for the sake of it, without giving even a single instance in support.
19. For the aforesaid reasons, I find that the Courts below have materially erred in exercise of their jurisdiction in appointing a Receiver, over the suit land and accordingly allow this Revision, set aside the impugned order and dismiss the application under Order XL, rules 1 and 2, C. P. C. Filed by the plaintiff respondent No. 1. To protect the interest of the plaintiff -respondent, however, the applicants shall continue to file in the trial Court, statement of accounts of the yearly income from the produce of the palm-date trees in the survey numbers in question, till disposal of the suit by the trial Court.
20. The trial Court is directed to conclude the trial of the suit within six months, at the latest.