1994 PLP 247 (CLC)

Both these conditions must exist together. There must be some nexus or common link. This condition is not fulfilled if the case against each defendant is entirely distinct and separate, in its subject‑matter from that of the other defendants. The aforesaid requisite conditions for joining the two defendants in one suit were not found to exist in the facts of the reported case. The plaintiff in the suit had purchased the suit house in which two defendants were residing as tenants in separate portions and the suit for eviction was filed against both the defendants claiming different reliefs against each of them, i.e. in respect of different portions held by them independently, at different rates of rent. It was found by the Court that the causes of action against both the defendants were quite different as each of the defendant was in possession of separate portion and, therefore, it was held that the case against each of the defendant was entirely distinct and separate in its subject‑matter. (iii) Kamal Kant Gopalgi v. Madhavji (AIR 1935 Bombay 343). In the said case reliefs for recovery of money due under promissory note and money due on account of debt, were sought jointly. The distinction was drawn between a suit on the promissory note and a suit on the debt. It was held that the aforesaid two claims cannot be joined together because a suit on a promissory note is necessarily to be filed against the executing party only and the co parceners cannot be joined in the suit although the debt might be binding on the estate. It was observed that if the debt and the promissory note are simultaneous and constitute one transaction then there will be no separate cause of action in respect of the debt. The rule laid down in the above authority is not in any manner relevant to the case in hand. The facts of this case, seen in the juxtaposition of the above case‑law, I do not find any substance in the submissions of the learned counsel for the said defendants. In this case neither the defendants are in possession of different portions of the property in suit, nor the suit against each defendant is entirely distinct and separate, in its subject‑matter from the other defendants. Although the plaintiffs and so also the defendants have acquired their specific shares in the property in dispute by different modes, such rights have been acquired by them in respect of one and the same subject‑matter. The parties are joint co owners of the property in the suit which is one and single entity. Each one of them has share in each millimetre of the property. It is immaterial that they have acquired undivided shares in different modes‑‑inheritance, gift and purchase. It would have been different, if each or more of the plaintiffs, instead of acquiring joint shares had acquired separate shares in respect of specific divided and separate portions in the property. By the present suit the plaintiffs seek partition of the property so that their entire share is separated from that of the defendants by metes and bounds. Such relief will not be feasible if sought by a particular plaintiff on the basis of acquisition of a particular share in a particular mode, as this will lead to multiplicity of litigation. Since the property is jointly owned by the parties, the suit could not have been filed choosing particular defendant or defendants on the basis of the mode of acquisition of the shares therein. If one were to put all the plaintiffs or some or one of them to election or election of some or one of the defendants, it would create only ridiculous situation. The underlying object of the provisions as contained under Order I, rules 2 and 3 is to avoid multifariousness. Looking at the present dispute in the light of the rule laid down in the authorities relied upon by the learned Advocate for the defendants, it cannot be said that common questions of law or facts have not arisen inter se the plaintiffs and the defendants. It also cannot be said that no nexus or common link exists in respect of the shares acquired in different modes by the plaintiffs, individually or collectively. On the contrary in my humble assessment of the dispute the plaintiffs had to be joined together for seeking their relief and so also join the defendants together for the said purpose. All the plaintiffs and so also all the defendants are co owners of the property and as such all of them are necessary parties. If any of them is dropped, the suit will be rendered bad for non joinder of necessary party. No doubt, that the Court has to assess and determine the legality of each of the acquisitions pleaded by the plaintiffs and possibility cannot be ruled out that each of the defendants may raise different pleas with regard to separate acquisition by the plaintiffs but merely for such reason, the suit cannot be said to be multifarious. The argument raised by the learned counsel for the defendants overlooks the provisions of Order I, Rule 4 which specifically provides that judgment may be given, without any amendment, for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to against such one or more of the defendants as may be found liable according to their respective liabilities. Again Order I, Rule 5 specifically provides that it shall not be necessary that every defendant shall be interested as to all the reliefs claimed in the suit against him. Similarly Order I, Rule 6 provides that where plaintiff is in doubt as to the defendant from whom he is entitled to obtain redress, he may join two or more defendants and the question as to which of the defendants is liable and to what extent, may be determined as between all parties. As already observed above, all the plaintiffs and defendants are proper and necessary parties for final adjudication of the dispute raised, as all of them jointly own the property in dispute and the redress by way of partition cannot be granted in absence of any plaintiff or defendant arrayed in the suit. It was next contended that the suit is barred under Order II, Rule 2, C.P.C.. It was argued that earlier plaintiffs Nos.l and 2 had filed Suit No.373/1985 in respect of the same property wherein the relief with regard to partition was not claimed and the plaintiffs having relinquished the relief with regard to partition, the claim was barred under the said provisions. It was submitted that the cause of action in both the suits is the same, that is the alleged exclusion of the plaintiffs from the management of the property. The above submission is without any substance and deserves to be overruled for the reason that the previous suit is not between the same parties. The previous suit was filed by plaintiffs, Nos.l and 2 herein against defendants Nos.l and 2 alone. Plaintiffs Nos.3 to 6 and so also defendants Nos.3 to 23 are not parties in the said suit. It is established law that no decree can be granted for partition of property unless all the joint owners are party in the suit. Therefore, in the earlier suit, the Court would not be competent to partition the suit property in absence of plaintiffs Nos.3 to 6 and defendants Nos.3 to

23. It was pointed out. at the Bar that apart from the suit property the parties are also owners of other properties which are subject‑matter of suit No.373/1985. All the owners of the properties have been ordered to be joined as parties in the said suit and the plaintiffs Nos.l and 2 herein, who have filed the above suit, have been directed to file amended memo of plaint. Be that as it may, in so far as the present suit is concerned, it cannot be said to have been rendered as incompetent because of the above fact. At the most it would be for the parties to request for joint trial of both the suits if they think it proper. It may further be pointed out that plaintiff No.6 acquired share in the property by way of gift on 1‑7‑1990. The suit for partition can be instituted by any co‑owner at any time so long as his right in the property subsists, even in absence of any wrongful act on the part of the defendant. In Rama Swami Mudalia and others v. Allagathi Ali (AIR 1929 Mad 96), it was held that Order lI, Rule 2 would have no application where the parties to the suits are not the same. Reference may also be made to Muhammad Azam v. Pakistan Employees' Cooperative Housing Society, Karachi and 4 others (PLD 1985 Kar. 481) and M. K. Abbasi v. United Bank Ltd. (1983 CLC 482). It was lastly contended that the suit in so far as it pertains to accounts, is barred under Articles 88, 89 and 106 of the Limitation Act. The first Article relates to a suit against factor for an account, the second one by principal against his agent and the last one to suit for an account and the share of the profits of a dissolved partnership. None of the said Articles is attracted to the present case. The learned counsel for the plaintiff submitted that the Article applicable under the circumstances is residuary Article 120 which provides limitation of six years when the right to sue accrues. In the present suit according to the plaint the right to sue accrued in the year 1984 and the accounts have been claimed from the year 1984. It may be observed that the defendants are liable to account for the rents and other amounts received by them from day to day and since the case of the plaintiffs is that the defendants are continuously realising the rent amount, the suit cannot be said to be barred by time in respect of all the sums that have been realised by the defendants continuously from 1984 till today. This submission can be considered properly only at the time of final disposal of the suit. The present suit is also for partition of property. It is settled law that in suits for partition, administration or of the like nature which do not necessarily arise out of any wrongful act on the part of the. defendant, the right to sue accrues day to day so long as the right in property subsists as already has been observed hereinabove. Reference may be made to the case of Sarakhi Abdul Rahiman Taragan and another v. Mohaidin Pathammul Bivi and another (32 Indian Cases 83). It is settled law that the plaint in the suit cannot be rejected partly if it is found barred by law only against some of the defendants or if some of the plaintiffs are found not entitled to enforce the relief. Such pleas are to be decided at the trial. It is also well settled law that of rejection of the plaint, the Court has to confine itself to the contents of the plaint, taking them to be true and correct, and cannot look into the pleadings of the other side. It was also contended by the.learned counsel for the said defendants that the proceedings of this suit are liable to be stayed as Suit No.168/1979, filed by Mst. Amtul Rauf for administration, rendition of account and partition of various properties owned by the parties is pending before this Court. The learned advocate for the plaintiffs urged that the above suit is not between the same parties. Some of the plaintiffs and defendants in the present suit are not parties in the said suit and some of the defendants in the said suit are not parties in the present suit. Section 10 of the Code comes into operation only when the matter in issue is also directly and substantially in issue in the previously instituted suit between the same parties. Stand taken by the learned counsel for the plaintiffs, as stated above, was not controverted by the learned counsel for the said defendants. Apart from above the previous suit being for administration of properties of the deceased Mahboob Bux, it cannot be said that issue involved in this suit like the purchase of share of third party, is directly and substantially in issue in the said suit. The above plea is, therefore, overruled. CMA No.1940/1992 is hereby dismissed. CMA No.679/1992: The plaintiffs have claimed joint ownership and management of the property, whereas the said defendants have denied the ownership of the property to the extent claimed by the plaintiffs and have only conceded to such share to plaintiff No.l as was inherited by him. The learned advocate for the plaintiffs in his arguments has mainly relied upon the documents filed alongwith the plaint and the affidavit in rejoinder. The case of defendant No.l is that he is the real owner of the entire share purchased from Salahuddin Group, out of which 27.5 Paisas share was purchased by him in the name of plaintiffs Nos.2 to 5, who are only ostensible owners and Benamidars for him. Similarly it is claimed by him that his mother Mst. Zainab Khanam was not the real purchaser of the share of Mst. Quraishunnica but it was purchased by him in the name of his mother and has termed the gift made by Mst. Zainab Khanam, in favour of plaintiffs as invalid. The said defendants also claim that the suit property has always remained exclusively in the control and management of the said defendants or precisely defendant No.l. It is, therefore, to be seen whether the plaintiffs are prima facie owners of the share claimed by them and whether they were also in joint control of the management of the suit property and have been disposed as alleged. The documents filed by the plaintiffs include circular dated 17‑1‑1985 issued by Defendant No.l under his signature to the tenants of Zainab Market to the effect that all the matters relating to the suit property are being dealt with by plaintiffs Nos.l and 2 and defendants Nos.i and

2. Referring to a suit pending in the Court of Senior Civil Judge, it is stated in the said circular that the Court has not prevented the aforesaid four persons from realising the rent or dealing with other matters connected with the suit property and that plaintiff No.l Moinuddin, his wife and children can recover rent and issue receipts and look after the management of the suit property. Defendant No.12 or any other person, apart from the persons named above, are not the landlords of the suit property and they have no right to realise rent or issue rent receipts. It further warns the tenants that they should not pay rent to any other person and if they do, they would be responsible for all the consequences. In two letters dated 1‑6‑1982, the Manager, United Bank Ltd. Inverarity Road Branch, Karachi, has been informed that the Current Accounts Nos.540 and 824, titled M/s. Sirajuddin Paracha and others and M/s. S. Aziz Bux and others, respectively would thenceforth be operated jointly by Moinuddin or in his absence by Mst. Anisa Begum and Mr. Sirajuddin or in his absence by Rafiuddin. Similar information has been conveyed by two letters dated 2‑6‑1982 to the Manager, National Bank of Pakistan, Saddar Branch in respect of Current Accounts Nos.4801 and 4802, titled as M/s. S. Aziz Bux and others and M/s Sirajuddin Paracha and others respectively. The above four letters have been written to bring on record the' signatures of the aforesaid. four persons who were to operate the said accounts. Letter dated 14‑4.1986, addressed to the Manager in respect of Account No.4802 is signed by defendant No.1 and also mentions the name of plaintiff No.l although he has not signed it. Letter dated 13‑12‑1984 was written by defendant No.l to plaintiffs Nos. l and 2 to the effect that they were creating hindrance, obviously in the management of the said property, by not signing cheques for payment of wealth tax; property tax, KMC, KESC and other Government dues in respect of the properties including the suit property and the dues are piling up. It warns plaintiffs Nos.l and 2 that they would be liable if any fines or penalties or interest levied, because of late payment thereof. The rent receipts dated 8‑12‑1983 and 5‑4‑1982 were issued to the tenants. The fir$t one is signed by plaintiff ‑ No. 1 and defendant No.2 and the other one by plaintiff No.1 and defendant No.l as landlords respectively. In written statement, filed by defendant No.l in Suit No.168/1979 for himself and others including plaintiff No.1 it is stated that the share of late Quraishunnisa in the estate of late Mahboob Bux was purchased by Mst.. Zainab Khanam. About the suit property, it is stated that the construction standing on the plot of the said property was demolished in December, 1972 and new building from basement to first floor has been constructed by the owners, other than Mahboob Bux after his death, out of their personal funds and resources. Such assertion in para No.7 of the said written statement has been reiterated by defendant No.l in para No.ll also. It is further stated that 55% share of Salahuddin Group in the snit property was purchased by defendant No.l, plaintiff No.l and defendant No.14 out of their own resources in the year 1972. It goes on to further state that the suit property is in exclusive possession of Sirajuddin, defendant No.i, Moinuddin, plaintiff No.l and Muhammad Sualeheen defendant No.14, herein, since the death of Mahboob Bux and they are exclusively controlling its affairs and management. The above written statement is dated 13‑12‑1980. In the Award of the two Arbitrators dated 13‑3‑1979 between plaintiff No.l and defendant No.l., in respect of several properties, it has been decided that the aforesaid plaintiff and the defendant shall have equal share in the suit property. But the said award was, however, not made rule of the Court and as such, for the time being it is being kept out of consideration. Alongwith the affidavit in rejoinder, the plaintiffs have filed several other documents. The first document is a copy of plaint in Suit No.109/1979 which has been filed by United Bank Ltd. against plaintiffs Nos.l and 2, defendants Nos.l, 2, 3 and 14, one son and two daughters of late Aziz Bux, Mst.. Zainab Khanam, the widow of late Mahboob Bux and two daughters of late Mahboob Bux, for recovery of the loan borrowed against mortgage of the shares of the said persons in the suit property and so also another property. Copy of plaint in Suit No.391/83, filed by United Bank Ltd. against M/s. Mahboob Bux, a partnership firm, plaintiff No.2 herein and two other ladies, as partners of the firm M/s. Mahboob Bux, defendant No.l as its Manager and M/s. Mahboob Bux Ltd. for recovery of loan borrowed for business purposes. One Abdul Karim, tenant of Shops Nos.14 and 15, of the suit property, filed FRA No.737/1980 against plaintiff No.l. defendant No.l applied to be made party in the said appeal on 18‑12‑1984, on the ground that due to differences between him and plaintiff No.l, he apprehended that the said plaintiff may prejudice his rights. In the affidavit, filed by defendant No.l in support of the above application, he has stated that he and plaintiff No.l are the two landlords of the suit property. The plaintiffs have also filed photostat copies of fifty receipts issued to tenants from 11‑8‑1982 to 5‑10‑1982, which have been jointly signed by plaintiff No.l and defendant No.l. Another set of fifty receipts issued to tenants in the year 1984, which have been jointly signed by plaintiff No.2 and defendant No.2. Sixteen rent receipts pertaining to the years 1976 and 1977, signed by plaintiff No.l alone. Names of the owners of the suit property are also printed in the said receipts including the names of all the plaintiffs. He has produced ten receipts under which security was received by plaintiff No.l from the tenants during the years 1973, 1974, 1975 and 1976. Other similar six receipts pertaining to the years 1975 and 1977 have been issued under the signatures of defendant No.14 and three receipts issued in 1978 are signed by defendant No.l. Seven Rent Bills issued to various tenants during 1975 and 1976 under the signature of plaintiff No.l in which names of the owners are mentioned and show that the plaintiffs are also co‑owners in the property. These Bills also bear the signatures of the tenants and describe terms and conditions of the tenancy. On the death of Aziz Bux, the owners of suit property through their Advocate sent notice dated 25‑2‑1980 to a tenant under section 18 of the Sindh Rented Premises Ordinance, 1979, wherein the names of the twenty‑nine owners are detailed including the names of the plaintiffs. The said notice further states that the rent is to be paid to plaintiff No.l or defendant No.l, jointly or severally. Defendant No.l under his signature issued letters dated 1‑7‑1976 to all the tenants in which names of the owners are mentioned including the names of plaintiffs Nos.l and

2. Two of such letters have been produced. Tenants have been informed that in the old rent receipts names of all the co‑owners were not mentioned and new receipts were printed which include the names of all the co‑owners. These letters also advise the tenants to deposit rent in Current Account No.4802 and on production of the Bank deposit slip, receipt would be issued. Three receipts pertaining to the years 1977, 1978, signed by defendant No.l, in which the names of owners are printed which include the name of plaintiffs Nos.l and

2. Defendant No.14 has, filed counter‑affidavit wherein the has not opposed the appointment of the receiver and affirms that he and Muhammad Arif Paracha acted as Arbitrators and that defendant No.l had signed the Award. In the affidavit in rejoinder filed by defendant No.l, in reply to the aforesaid counter‑affidavit, he has not denied his signature on the decision of the Award but has denied that any arbitration was held. With regard to his signature on the said decision he has stated that defendant No.14 has obtained his signature on a few blank papers in respect of Mahboob Chamber and he in collusion with plaintiffs has fabricated the Award. As already pointed out above, the defendants were permitted to file their further affidavit in reply to affidavit in rejoinder which has been filed by defendant No.l, but he has not been able to give any cogent explanation with regard to the documents filed alongwith the rejoinder which clearly show that plaintiffs have been all along accepted as co‑wners, and plaintiffs Nos.l and 2 have been receiving rent and operating Bank accounts jointly with defendants Nos.l and 2 and jointly managing the affairs of the suit property. It will be, nonetheless, worthwhile to dilate upon the salient features of the reply of defendant No.l to the documents filed by the plaintiffs. According to him, the plaintiffs were joined as parties in the suit filed by the Bank, as their names appeared in some of the property documents. The admission made by defendant No.l about the ownership of the plaintiffs in several documents and judicial proceedings, is termed as irrelevant inasmuch as he has not admitted the plaintiffs as owners as they claim themselves to be. About the rent receipts, notices to tenants under section 18 of the Sindh Rented Premises Ordinance, 1979 and other documents which show that the plaintiffs are co‑owners of the suit property, have been though disputed and denied on the plea that they cannot be verified, but at the same time it has been alleged that plaintiff No.l being his younger brother, has taken undue advantage and has removed from his custody the old record relating to the properties, including suit property. He has, however, not denied his signature on various documents wherein he has admitted the plaintiffs to be the co‑owners. So also it is not denied by him that plaintiffs Nos.l and 2 used to jointly sign the rent receipts alongwith him or defendant No.2. All that is stated by him is that the said plaintiffs used to sign receipts unauthorisedly. His above plea is of no substance and is rather naive. The other plea urged that the said plaintiffs used to sign as agents is not only inconsistent but misplaced. When the receipt is signed by the principal, no scope is left to be signed by the agent. The said defendant No.l in his search for better defence has taken all sorts of pleas in his counter‑affidavit which cannot be mutually reconciled. The last plea taken in this regard is that plaintiff No.l committed misconduct with tenants and misappropriated huge amounts collected from tenants and the tenants approached him ,for payment of rent, prima facie destroys his case that the said plaintiffs were not managing the suit property. Explaining the purpose of the letters written to the banks for operating the rent account jointly, it is stated that some employee of defendant No.l had started forging his signatures. The above explanation prima facie is not such as would inspire any confidence. Such situation could have been obviated by many other means and in case it was necessary to operate account under two joint signatures, he could have opted to join his wife or son. The letters written to the Banks show that accounts were to be operated jointly by both the contesting parties, through their representatives, from plaintiffs' side either by plaintiff No.l or 2 and on the said defendants' side either by defendant No.l or

2. Defendant No.l's pleas that he is purchaser of the entire share of Salahuddin Group and the shares of Mst. Quraishunnisa and that he has been exclusively managing the property are not substantiated by any material on record. On the contrary the averments made by defendant No.l in the written statement filed by him in Suit No.168/1979 prima facie destroy the said pleas. In the said statement it has been averred that 55 Paisas share of Salahuddin Group was jointly purchased by his family members, family members of Moinuddin, plaintiff No.l and Amtul Jamil, defendant No.3, out of their own funds and that he, Moinuddin and Sualeheen are in exclusive possession and are controlling the affairs and management of the suit property after the death of Mahboob Bux. Similarly, in the said written statement he has stated that the shares of Mst. Quraishunnisa were purchased by Mst. Zainab Khanam. It is nowhere stated that he was actual purchaser of the said share. No plea of Benami transaction was taken in respect of above transactions. The above plea and that of exclusive management of property by defendant No.l has been taken by him for the first time in Suit No373/1985 apparently as an afterthought. The above written statement was filed on 31‑12‑1980 and is signed and verified on oath by defendant No.l. In face of the overwhelming material on record which indicates that the property in suit was being jointly managed since 1973, it cannot be said that the plaintiffs have failed to make out prima facie case, as contended by the learned counsel for the said defendants. The case set up by the said defendants that the plaintiffs are only ostensible owners of the property and that defendant No.l is the real owner, under the above circumstances cannot be accepted at this stage, merely for the reason that he has been in possession of the sale‑deeds executed in favour of plaintiff No.l and Mst. Zainab Khanam, even if one were to believe the said version. No doubt, payment of sale considerations and possession of title documents are relevant considerations for proving the Benami transaction, but are not the conclusive ones. Even at that the above two factors are yet to be proved. The above contents of the written statement filed in Suit No.168/1979 coupled with the other documents brought on record prima facie show the title of the plaintiffs to the extent claimed by them and that the plaintiffs have been in joint management of the suit property from the very beginning. It is the case of the said defendants that defendants Nos.3, 8, 9 and 12 have raised construction of the entire second floor and it is in their possession and various premises on the said floor have been let out or sublet by them. Various premises on the first floor have been allegedly rented out. to them is 1985 under receipts Nos.2076 to 2080. Receipts filed by defendant No.l alongwith his counter‑affidavit show that Sofia Siraj, defendant No.9, has been let out seven shops, comprising 906 square feet through her mother Mst. Amtul Jamil Begum, alongwith proportionate area of the basement and whole second floor, with right to sublet, make additions and alterations, will not be liable to ejectment on the ground of personal bona fide need or default in payment of rent. 'there is also an endorsement on the receipt that the terms and conditions of tenancy printed on receipt are deleted and be treated as cancelled. With all the above advantages the rent fixed is Rs.906 per month only. Similarly Fouzia Siraj, has been let out four shops, measuring 432 square feet, Raziuddin six shops, measuring 1,080 square feet, through their mother Mst. Amtul Jamil Begum, defendant No.3 and defendant No.3 has been let out four shops measuring 468 square feet, on monthly rent of Rs.432 Rs.1,080 and Rs.468 respectively. All the receipts contain similar endorsements as are made in the receipts of Sofia Siraj, including the one that entire second floor and corresponding areas of the basement stand rented out alongwith the shops. The benefits, which have been conferred on the said tenants, who are son, daughters and wife of defendant No.l, have made them virtually owner of the areas rented out to them respectively. The receipts also show that the rent is to be adjusted from loan. But defendant No.1 has not disclosed who and when had borrowed such loans from the aforesaid so‑called tenants. Object of the said endorsement is to absolve the so‑called tenants even from the liability to pay rent. The above act on the part of defendant No.1 has laid bare his intentions to waste the property and deprive the co‑owners of their legal rights in the property in suit. It would be highly unsafe to allow the property to remain in his hands. It has been also disclosed that defendants Nos.4, 5 and 8 after filing rent cases or otherwise took over possession from various tenants and have sublet various premises to tenants. It is not disputed that the. premises in the suit property, which is situated in premier commercial area of Karachi are rented out on pugree. The various premises rented out to the son, daughters or wife of defendant No.l, have deprived the plaintiffs and other defendants who have not opposed the appointment of receiver, of the income of pugree and rent realised by the said defendants or any of them. The suit property is in absolute control of defendant No.1 and the rent is being realised by two of his children to circumvent the injunction order passed in Suit No373/1985. The said defendants by denying the title of the plaintiffs, have declared their intention not to pay to them their due share in the income of the property. The record prima facie shows that the property was being jointly managed and looked after by both parties but the said defendants have deprived the plaintiffs of participation in the management of the property. The parties are at dagger's drawn and are involved in litigation among themselves. Several tenants are depositing rent in Courts. Under the above circumstances it was contended by the learned counsel for the plaintiffs that the property is in danger of being wasted and dissipated ‑and, therefore, it would be just, convenient and equitable to appoint receiver. The learned Advocate for the said defendants has opposed the application on the plea that the plaintiffs are owners of very small share and there is likelihood of the property being wasted, which assertion prima facie has not been proved to be correct. The learned counsel for the said defendants relied on the case of Abdus Samad Khan and others v. Moulvi Abdullah (1989 CLC 1563) in support of his contention that defendant No.1 being the Benami owner of the majority shares, standing in the names of the plaintiffs, the appointment of receiver will not be just and convenient and the Court should accept the ownership of all the said shares as vesting in the defendants, particularly when the sale‑deeds show that the consideration for purchase of the shares in the names of plaintiff No.1 and Mst. Zainab Khanam was paid by defendant No.1 and he also remained in possession of the sale‑deed, till it was deposited in the bank for borrowing loan and continues to be in possession of the sale deed executed in favour of Mst. Zainab Khanam. It was further urged by him that defendant No.1 has been continuously from the very beginning managing the property exclusively. Under these circumstances the appointment of receiver will not be just and convenient. In the authority relied upon by him, the Court had found that by preponderance of evidence it was established that the bid money for purchase of the property in auction was paid by the plaintiff and he had been dealing with the property through the years as an owner and thus was the real owner. Such finding was returned at the conclusion of trial. But in so far as the present case is concerned, defendant No.1 in various judicial proceedings, as already observed above, has admitted payment of consideration by and the ownership of plaintiff No.

1. On execution of registered sale‑deed, the Vendee becomes the owner of the property and very strong presumption exists in favour of plaintiffs. It is for defendant No.1 to rebut such presumption at the trial. For the time being, the above presumption is reinforced and strongly supported by bulk of documents, referred to hereinabove, to at least prima facie hold that defendant No.1 and Mst. Zainab Khanam were/are the owners of the respective shares purchased by them. The learned counsel for the said defendants relied on the case Shaikh Muhammad Anwar v. Sheikh Muhammad Iqbal and another (1984 CLC 103), in which it was held that receiver can be appointed if prima facie title to property existed and strong case is made out. In Mansoor E. Khan v. Sofia Mansoor Khan (1987 MLD 737), Saleem Akhtar, J. (as he then was, now Judge of the Supreme Court), in a suit where the property in dispute standing in the name of the defendant, was claimed by the plaintiff to be Benami, appointment of receiver was ordered as the facts showed existence of a serious dispute between the parties and it was found just and convenient to appoint the receiver. Similarly, Nasir Aslam ?chid, J. (as he then was, now Chief Justice of this Court, in the case of Aftab Ahmed Mufti and others v. Mst. Seema alias Zarina (1988 CLC 1567), while considering application for appointment of receiver in respect of the property where title was in dispute, after scholarly analysis of catena of case‑law, observed that it is just and convenient to appoint a receiver so as to preserve the property and also its income for the benefit of whosoever is or are found to be the owners of the property. It is observed:‑‑ "It, therefore, follows that under Order 40, Rule 1, C.P.C., a Court will appoint a receiver of the disputed property if, the Court reaches the conclusion that it is just and convenient to order so and to persuade the Court to reach this conclusion the plaintiff has to make out a prima facie case that he owns the suit property or has a substantial interest therein which requires protection or preservation pending final determination of the rights of the parties in the Suit and because of expected waste or peril to such property, the right or interest of the plaintiff cannot be protected or preserved without appointment of receiver. And an application for appointment of receiver under Order 40, Rule 1, C.P.C. is not liable to be dismissed merely for the reason that the defendant is in possession of the suit. property‑‑generally the defendant is in possession." The rule laid down in the above authorities are squarely applicable to the facts and circumstances of this case. In the case of Ghazala 7akir v. Muhammad Khursheed and 7 others (PLD 1989 Kar. 350), my brother Wajihuddin Ahmed, J., after referring to numerous authorities has observed ‑ that in a suit for administration of the property of a deceased person or for accounts in the partnership or by shareholders in a private limited company, for it partake elements of partnership, property is normally involved and in such suits requirements of rule I of Order XL are more satisfied than not, and, in principle, it is generally, just and proper to appoint receiver, if it appears necessary for the interest of the contestants. The record prima facie shows that the plaintiffs and the said defendants have been managing the property jointly and subsequently the plaintiffs were ousted from the management and now the property is in the hands of defendant No.1 only who is adamant in denying the due share of the plaintiffs in the property. In Basant Ram v. Dasondhimal and others (AIR 1929 Lahore 497), it was observed that in all cases where a property is in the hands of one co‑sharer and the share of the profits is withheld from the others, there is sufficient reason for appointing a receiver. It has been noted above that the plaintiffs on the one hand and the said defendants on the other hand are at dagger's drawn since a long time. Apart from Suit No373/1985, Suit No.168/1979, J. M. No.43/1990 and J. M. No.44/1990 between the parties are pending in this Court. It is also stated in the affidavit in rejoinder filed by plaintiff No.1 that even criminal cases are pending between the parties. In the case of Basant Ram (ibid), it is observed that when there are quarrels in the family and the conduct of the defendant has made it impossible for the plaintiff in the past and during the pendency of the suit to get his fair share of the harvest; and it seemed probable that in spite of any precautions taken by the Court, the plaintiff would not be able to secure his fair share in the income from the property so long as it remained in the hands of the defendant, the appointment of the receiver was considered just and convenient. Keeping in view the quarrels, bickering and serious disputes between the parties in this suit, I am of the firm view that appointment of a receiver in this case will be just and convenient. The learned counsel for the plaintiffs also relied on the case of Maqbool Hussain v. Haji Muhammad Ashraf (1991 MLD 11‑34). In this case the plaintiff, who was purchaser of the property, was put in possession thereof but subsequently was dispossessed by the defendant. The defendant sought injunction against the plaintiff restraining him from interfering with his possession and the plaintiff applied for appointment of receiver. The Court held that it would be just and proper to appoint receiver for preservation of property during pendency of the suit. It is alleged that the said defendants are renting out shops on pugree which they are misappropriating to their benefits. It is also alleged that the said defendants have opened another account in which rent is being deposited to deprive the plaintiffs of their share in the rent and no taxes are being paid. Defendant No.1 in his further affidavit has though denied the above allegation, but has not specifically stated that no shop was rented out by him on Pugree, nor he has placed any material on record to prima facie show that the rent was. being deposited in the above‑stated joint accounts of the parties or that taxes were being paid by him. The above coupled with the facts that the rent is being realised by the children of defendant No.1 sidestepping the injunction order, the bank has filed suit for recovery of money by sale of the mortgaged property and the due shares in the income of the property are not being acknowledged by the said defendants, overwhelmingly show that the property is in danger of being wasted and dissipated. Reference may be made to the other authorities relied upon by the learned counsel for the said defendants. (i) Anandi Lal and others v. Ram Sarup and others (AIR 1936 Allahabad 495); In this case the Full Bench of the Allahabad High Court on reference made, held that a simple mortgage has no present right of possession and, therefore, the prayer for appointment of receiver was denied. (ii) In Sitaram Kundanlal and others v. Pannalal Kundanlal and others (AIR 1957 Nagpur 1), it was observed that there should be no appointment of a receiver in cases of partition between member of a joint Hindu family, who were in separate possession of property which fact was not disputed from a long time. (iii) Rasi Dei v. Bikal Maharana and others (AIR 1965 Orissa 20) also relates to joint Hindu family property. The trial Court had ordered appointment of receiver on the application of plaintiffs who were outsiders and had acquired by purchase only 3 acres out of 5,656 acres of land. The parties were in separate possession of their more or less respective shares and proceedings under section 145, Cr.P.C. initiated by the plaintiff were pending. It was under the above circumstances that the High Court set aside the order of the subordinate Judge. It has been observed that appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of the receiver is exposed to manifest peril. (iv) In the case of M. Ataur Rehman Alvi v. Inamur Rahman (1974 SCMR 54), the plaintiff had failed to make out a prima facie title to the property in dispute, as none of the properties, for which appointment of receiver was being sought, stood in his name. On the above facts it was held that the person bona fide in possession cannot be deprived of the properties by appointment of receiver. (v) Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others (PLD 1976 Kar. 181). In this case Zaffar Hussain Mirza, J. (as he then was) refused the appointment of receiver in respect of the property in suit for the reasons that the person in possession of the property sought to be dispossessed, was in possession of land for 18 years and the appointment was sought merely on the ground that there would be difficulty in recovering profits of property in event of success of the petitioner. (vi) In Mst. Ghulam Zainab and 7 others v. Mst. Tahira Sultana and 3 others (PLD 1977 Lahore 830), it was held that appointment of receiver for a property not sued for is without jurisdiction. (vii) In Bakhtiar Khan and 2 others v. Rahim Bux and 2 others (PLD 1978 Kar 410), the applicant seeking appointment of receiver had made bald allegation that the land in suit was under waste. in hands of defendants, without giving any instance whatsoever and it was held that such allegation is hardly sufficient to show that land is in danger of being wasted and accordingly the order appointing the receiver was set aside. None of the, above authorities in any manner advance the case of the defendants as in this case neither‑the parties are in separate possession, nor it can be said that the plaintiffs have failed to show prima facie title to the property, nor it is prima facie established that the said defendants or defendant No.l has been in exclusive possession, control and management of the suit property, nor the suit is based on bald allegations. To sum up the plaintiffs are the co‑owners of a substantial share and have always been associated with the control and management of the suit properties, were dispossessed from such de facto management by the said defendants who were denying the due share of the plaintiffs and are depriving them of their due share in the rental income of the suit property, so also pugree, defendant No.l has, to the exclusion of the plaintiffs, created so‑called tenancy rights, in respect of substantial portion of the suit property, in favour of his son, daughters and wife, incorporating such conditions that the said so called tenants have been conferred upon almost absolute rights of ownership, defendant No.l's children have let out or sublet various tenements as disclosed by him and are dealing with tenants on their own, the exact share of the different parties in the suit is in dispute and is to be resolved, the said defendants have prima facie circumvented the order passed by this Court in Suit No.373/1985, various tenants are depositing rent in the Courts, the property in suit is already subject‑matter of litigation in suits filed by the banks for recovery of loans, the parties are at dagger's drawn and are involved in litigation among themselves. Defendant No.14 has supported the application under consideration and defendants Nos.9 and 15 to 24 have not come forward to contest the application. Under the above circumstances the property is in danger of being damaged, wasted and dissipated and as held above, it is only just and convenient and also in keeping with the equitable principles that for preservation of the property, receiver be appointed. I accordingly appoint Mr. Bashir Ahmed Memon, the Official Assignee as Receiver of the suit property. It is, however, observed that if any receipt is to be changed or any vacant premises is to be let out, the receiver will do so after consultation with the respective representatives of the plaintiffs, said defendants and the remaining defendants and in case such representatives are not appointed, the receiver will do so after consultation with plaintiff No.l and defendant No.l and if they or any of them is non‑cooperative, permission will be sought from the Court. The application is allowed accordingly. It is made clear that the observations made in this order are tentative in nature and shall not prejudice any party at the trial. AA./M‑1834/x. Order accordingly.