M.N. Shukla, J. - (1.) THIS is a defendant' s appeal under O. 43, R. 1, C.P.C. and is directed against the order dated 2-2-1977 passed by the III Additional District and Sessions Judge, Allahabad on an application made by the plaintiff-respondent No. 1 for removal of the appellant No. 1 from the post of Receiver to which he had been appointed by an order of the High Court.
(2.) THE facts leading to the impugned order may be briefly stated. THE plaintiff-respondent No. 1 had filed Suit No. 55 of 1971 for possession and mesne profits of the property in suit, consisting of bungalow No. 29/30 Kanpur Road. It was stated in the plaint that the said property belonged to Smt. Mahmood Jahan Begum, sister of the plaintiff-respondent No. 1, that Smt. Mahmood Jahan Begum died on 29-3- 1968 leaving behind the plaintiff- respondent No. 1 and defendants Nos. 3 and 4 as her heirs and they inherited the said property on the death of Smt. Mahmood Jahan Begum. It is also stated in the plaint that the defendant No. 1 was claiming the said property on the allegations that it was a waqf property under a deed of Waqf dated 9-11-1966 and that he was the Mutwalli thereof. According to the plaintiff- respondent No. 1 the said deed of Waqf was invalid on the ground that it was obtained under undue influence and that the land on which the aforesaid building was constructed being a leasehold land could not be dedicated under the Mohammadan law. THE Waqf deed was assailed on sundry other grounds as well. The defence of defendant No. 1 Syed Ahmad Jawwad was that Smt. Mahmood Jahan Begum executed the deed of Waqf out of her own free will on 9-1-1966 and that he was the Mutwalli under the said deed of Waqf. He, therefore, claimed to be in rightful possession as Mutwalli over the Waqf property. He raised some other pleas also in defence which are not relevant at present for the disposal of the appeal. The plaintiff-respondent No. 1 moved the application for appointment of Receiver under O. 40, R. 1 C.P.C. which was allowed by the then Civil Judge by his order dated 20-9-1973 which may be usefully quoted: " I consider it proper to appoint Sri Mohammad Islam Ansari; Advocate as Receiver. He shall realise rent from all the tenants of the disputed property and shall make necessary expenses for the preservation of the property. He shall maintain full account and shall deposit the entire amount in court. Rent will be realised by him with effect from 1-10-1973. He shall get a sum of Rs. 75/- per mensem as his remuneration. He may " adjust this amount from the income of the property." It was further stated in the operative portion of the order:- " Sri Mohd. Islam Ansari, Advocate is appointed Receiver of the property, (i) He shall realise rent from all the tenants of the disputed property from 1-10-1973, (II) maintain accounts of the income and expenditure, (III) carry out necessary repairs with the permission of the court, (IV) keep an account of the repairs, (V) submit account to the court. He shall get remuneration of Rs. 75/- per month which he shall be entitled to adjust from the income of the property."
(3.) THE defendant No. 1 Syed Ahmad Jawwad feeling aggrieved by the above order filed First Appeal From Order No. 311 of 1973 in this Court. In appeal this Court modified the order of the trial court by its order dated 31-1-1974. THE operative portion of the order is relevant and reads as under: " THE result is that this appeal partly succeeds to the extent that the appoinment of Sri Mohd. Islam Ansari, Advocate is set aside and Sri Syed Ahmad Jawwad is appointed Receiver. THE rest of the order under appeal shall stand." It will be apparent that this Court affirmed the order of the learned Civil Judge with regard to the appointment of Receiver and the only modification made by this Court in appeal was that it substituted Syed Ahmad Jawwad for Mohammad Islam Ansari as Receiver. The rest of the order was maintained in its entirety by this Court.;