2006 PLP 828 (YLR)

SYED HAMID ALI SHAH, J.--This single judgment will dispose of two appeals bearing F.A.O. No.4 of 2005 and F.A.O. No.28 of 2005, as both the appeals arise out of one order.

2. Brief facts giving rise to this appeal are that appellants in F.A.O. No. 4 of 2005 instituted a suit for declaration, partition, possession, injunction and rendition of accounts, on 19-2-2001. Learned trial Court passed the preliminary decree on 19-11-2002. Preliminary decree is under challenge in R.F.A. No.235 of 2003, which has been admitted to regular hearing. An application for the appointment of receiver was filed before the appellate Court, wherein the applicant was directed to present the application for appointment of receiver before the trial Court. Appellate filed an application under Order XL, rule 1, C.P.C. for the appointment of receiver, which was contested by the respondent. Learned trial Court dismissed the application vide order dated 26-10-2004. Hence this appeal.

3. Learned counsel for the appellant has argued that at the time of passing the preliminary decree, learned trial Court has held that land underneath Hassan Plaza belongs to the parties while construction raised on joint property without consent of other co-sharers also becomes a joint property. It was further contended that respondent No.1 is enjoying the fruits of joint property to the total exclusion of other co-sharers. The parties are not on speaking terms and as such the appellants are kept in dark with regard to the income of the joint property. Learned counsel in support of his contentions has placed reliance on the cases of "Fazal and others v. Ghulam Muhammad and others" 2003 SCMR 999 and "Mazhar Hussain and 4 others v. Jan Muhammad and 13 others" (2003 YLR 2056).

4. Learned counsel for the respondents, on the other hand, has fully supported the impugned order. It has been contended that land underneath Hassan Plaza, is not joint property. The construction is raised on the property, which is exclusively owned by respondent No. 1.

5. Heard learned counsel for the parties and perused record.

6. Property underneath Hassan Plaza has been held by the learned trial Court in preliminary decree dated 19-11-2002, as joint property. Respondents have not challenged the finding of the learned trial Court in this respect, in appeal and as such the order has attained finality. Admittedly the respondent is enjoying the fruits of joint property to the total exclusion of other co-sharers. Respondent has raised construction on joint property without the consent of other co-sharers, so much so, that while doing so, no permission from the Court was sought. A co-sharer who raises any construction in joint property is not entitled to any compensation and enhancement in value. Such property is for common advantage of all the co-sharers. While holding so I am fortified by the principle laid down by the august Supreme Court in the case of "Afsar Khan and others v. Mst. Khanum Jan and others" (1983 SCMR 273).

7. It is settled law that appointment of receiver is the harshest step and such power should sparingly be used. Appointment of receiver is justified when there is a prima facie case, applicant has a title to the suit property; property is in danger of being wasted; and it is just and convenient to appoint a receiver. What is just and convenient can be determined in the light of facts and circumstances of a case. Denial of a partner to be a partner in the firm; co-sharer who is deprived of his share of produce during pendency of suit; one co-sharer in possession enjoying the profits of joint property by excluding other co-sharers; and where shares are specified but the property is undivided, are the instances held to be jut and convenient for the appointment of receiver. If any reference is needed, same can be made to the cases of "The Crown v. Bar Association of Sukkur" (PLD 1956 Sindh 84), "Ghulam Hussain v. M. Riaz-ud-Din" (1983 CLC 1111), "Sarvana Madhas v. Sinzarvelin Mudaliar" (AIR 1938 Madras 730), "Basant Rain v. Dasondth Mall and others" (AIR 1929 Lahore 497) and "Mazhar Hussain and 4 others v. Jan Muhammad and 13 others" (2000 YLR 2056).

8. Adverting to the case in hand property of Hassan Plaza as per the preliminary decree is a joint property. Construction is raised without consent of other legal heirs and rent is being collected and utilized by the respondents exclusively. Appellant and other co-sharers are deprived of the fruits of their joint property, Parties are involved in litigation and are not on talking terms. It will thus be just and convenient to appoint a receiver.

9. For what has been discussed, the appeal in hand is accepted and the impugned order dated 26-10-2004 is set aside. Learned trial Court is directed to appoint a receiver of the property in dispute on receiving the file of case. Receiver shall take over the management and control of the whole of property, collect rent and deposit the same iii the bank account and maintain the accounts of income and expenditure of the property in dispute according to the direction of the learned trial Court. There will, however, be no order as to costs. F.M./A-630/L Appeal accepted.