RUPA Vs. CHHOGALAL

JUDGEMENT

(1.) This revision has been filed against an order of the learned Addl. Commissioner, Jaipur dated 17.11.56 whereby he confirmed in appeal the order of the trial court about the appointment of a receiver pending disposal of the suit for recovery of possession over the land in dispute instituted by the opposite party against the applicants in the court of the Asst. Collector, Jaipur.

(2.) The main contention of the learned counsel for the applicants is that in ordering the appointment of a receiver on the land in dispute pendente lite both the trial court as well as the lower appellate court acted illegally and with material irregularity in the exercise of their jurisdiction inasmuch as that they ignored the express provision of law contained in sec. 212 of Rajasthan Tenancy Act. It was urged that according to the provisions of this section it was incumbent on the courts below to satisfy them -selves before issuing an injunction and ordering the appointment of a receiver that the property in dispute was in danger of being wasted, damaged or alienated by any party thereto or that any party to the suit threatened or intended to remove or dispose of the said property in order to defeat the ends of justice. It was also urged that prior to the institution of the present suit the land in dispute was found in actual cultivatory possession of the applicants whose possession was duly declared by the S. D. M. in a proceeding between the parties under sec 145, Cr.P.C. and that so long as the said order of the criminal Court dated 3.9.56 was in force and the applicants were not evicted from the disputed land by due process of law, the courts below had no jurisdiction to disturb the possession of the applicant in these revenue proceeding*. Our attention was drawn to a copy of the order under sec. i 45, Cr.P.C. on the file passed by the S. D. M. in respect of this land. In support of this contention reliance was placed on a decision of a single Judge of the Lahore High Court reported in A.I.R. 47 Lahore page 173 wherein it was held that the finding of a criminal court that "A" was in possession of a property X on the date on which breach of peace was likely to occur or within 2 months of the date, could not be questioned in a civil court and A must be held to be continuing in possession until he was evicted in due process of law: and as B was not on the date of suit in possession of the property X of which he was to recover possession, no injunction can be granted in his favour and against A as prayed for under O. 39r. 1 C. P. C. Reliance was also placed on R.R.D. 1956, pages 173 and 273 in which it was held that a revenue court was not authorised to grant an injunction and appoint a receiver wherever it appears to be just and convenient unless it was satisfied that either the property is in danger of being wasted, damaged or alienated or that any party intends to remove or dispose it of in order to defeat the cause of justice As against this the learned counsel for the opposite party cited I. L. R. 22 All. 215 in which a Division Bench of the High Court of Allahabad held that the fact that there existed in respect of any immovable property an order of a magistrate passed under sec. 145, Cr.P.C. is no bar to the exercise by a civil court of the power conferred on it by sec. 505 (which now corresponds to O. 34, R. 1 C. P. C.) of appointing a receiver in respect of the same property. It was also urged that the opposite party had proved by affidavit that the property in question was being wasted and damaged by the applicants and that it was a fit case for issue of an injunction and the appointment of a receiver both under O.39 r. 1 C. P. C. read with sec. 212 of Rajasthan Tenancy Act as well as O. 40, r. 1. C. P. C.

(3.) In order to appreciate the arguments put in by the learned counsel for the applicants we examined the circumstances under which the impugned order was given by the courts below.