V.G. Oak, C.J. - (1.) THIS second appeal by Plaintiffs arises out of a suit for possession and damages. Dhani Ram and others brought the suit against Mangu and five others on these allegations.
(2.) THE Plaintiffs owned zamindari property in a number of villages in district Bijnor. They applied Under Section 4 of the Encumbered Estates Act. One Laik Ram creditor applied for appointment of a receiver. Accordingly, the Special Judge appointed a receiver to manage the zamindari property belonging to Plaintiffs. This property included plots, which were Khudkasht of Plaintiffs. On 29 -6 -1943 the receiver let out Plaintiffs' plots to Defendant Nos. 1 to 5 for a period of three years on an annual rent of Rs. 500/. On 5 -7 -1954 the Plaintiffs brought the suit to recover possession from Defendants and for damages on the ground that the Plaintiffs were Bhumidhars of the land and Defendants have no right to cultivate the land. Defendants pleaded that they were sirdars of the land in dispute. This portion was accepted by the trial court. The Plaintiff;' claim was, therefore, dismissed. An appeal filed by the Plaintiffs was dismissed by the District Judge, Bijnor. Plaintiffs have, therefore, come to this Court in second appeal. When the second appeal came up for hearing before a learned Single Judge, the question was raised before him whether the receiver was competent to execute the lease. The learned Judge thought that there was no clear authority of this Court on this question. He, therefore, referred the case to a larger Bench.
(3.) IT was urged by Mr. Shanti Bhushan appearing for the Appellants that when the receiver is appointed by the court, the property does not vest in him. Consequently, he cannot execute leases with respect to the property in his charge. In support of this contention, he referred to a number of decisions of different High Courts. In Jacob v. Subramonia Iyer : AIR 1960 Ker 212. It was held that a court or receiver taking possession of a property in suit does not thereby derive any title to it, much less any interest in it, not even a right to possession, except for administering or managing or preserving it for the benefit of the party rightfully entitled to it; if so, there is no interest to transfer or to convey. In Karri Ramaya Naidu v. Karri Chilkayya Naidu : AIR 1963 Ori 142 it was held that where a receiver was in possession of the suit lands on behalf of the contending parties who were asserting right to remain in possession and management of the property, the party who was given the land for cultivation by the receiver cannot contend that he is tenant under the receiver. In Mahant Parshotam Das v. Frem Narain alias Prem Das alias Prem Sukh Das, 1956 AWR 782 it was held by a Division Bench of this Court that where a party to a litigation who claims to be the owner or trustee of the property in dispute is allowed to cultivate the disputed property during the pendency of the litigation he cannot claim rights adversely to the person who is ultimately held entitled to the property. Cultivatory possession of such person does not create tenancy rights in his favour. In that case the court was anxious to avoid the creation of tenancy rights in Sir and Khudkasht plots in dispute. Uma Shanker, who claimed to be the Chela of Mahant Bhola Das was appointed receiver. Since he claimed to be the owner of the property, it was held that he could not subsequently claim to be a tenant in the same land. It was observed at page 784: Where a party to a litigation who claims to be the owner or trustee of the property in dispute is allowed to cultivate the disputed property during the pendency of the litigation he cannot claim rights adversely to the person who is ultimately held entitled to the property. In Upper Ganges Sugar Mills v. Khalil -ul -Rehman, (1961) AWR 78 a certain company was in possession of the land in dispute from before 3 -11 -1948. It remained in possession thereafter by virtue of certain stay orders passed by the appellate courts. It was held by the Supreme Court that the company remained in possession in the same right in which it was in possession before the above date, land its possession thereafter cannot be said to be on behalf of the court. In Smt. Annapurna Dasi v. Sarat Chandra Bhattacharjee : AIR 1942 Cal. 394 it was held that when a receiver mortgages a property with the sanction of the court, he must be taken to have represented the owners of the property. In Mahabir Das v. Udit Narain Verma and Ors., 1938 Pat 613 it was held that a receiver appointed by the court to take charge of land during a suit regarding dispute between two persons asserting right as landlords is a landlord for the time being and any bonafide settlement made by him in the interest of the estate in the ordinary course of management is binding on the parties who would be decided to be rightful owner of the land.;