- (1.) THIS is a revision application against the order dated 28-8-1968 by the Revenue Appellate Authority, Kota, upholding the order of the SDO Chhabra dated 27-7-1967, appointing a receiver. Plaintiffs-non-Applicants Padamchand and others filed a suit in the court of the SDO Chhabra against the defendant-applicant Chandmal under secs. 88 and 183 of the Rajasthan Tenancy Act, for declaration of tenancy, ejectment and possession with regard to certain Khasra numbers in all measuring 63 bighas 5 biswas, in village Dhoti, Tehsil Atru. The plaintiff-non-applicants applied for the appointment of a receiver and the SDO granted the request by his order dated 27-7-1967. The defendant-applicant went up in appeal but the appeal was rejected. Hence this revision application.
(2.) ARGUING on behalf of the applicant, learned counsel first explained the circumstances of the dispute. He said that the land was the Khatedari of one Nathulal. He had a widowed issueless daughter Kesarbai, and transferred the land to her in his life time. This Kesarbai, it was said, adopted Chandmal, defendant-applicant son of Gundarlal, a collateral of her deceased husband Gopilal on 3-1-65. Subsequently, however, on 7-2-65, she is said to have executed a will in favour of Dakhabai, daughter of her father (Nathulal)V brother Mangilal. Plaintiffs-non-applicants are the sons and daughters of Dakhabai. Kesarbai died on 9-2-65, two days after the execution of the alleged will. Learned counsel said that probate for the will had not been applied for, and the will is wholly suspect. He proceeded to say that the deed of adoption was, in any case, earlier and a mutation had also been recorded on its basis. The defendant-applicant was also in actual possession as admitted by the plaintiff non-applicants in the plaint. It has been stated in the trial court's order also that defendant-applicant was in possession. The trial court, in accepting the plaintiff, non-applicants request for appointment of receiver, gave the only reason that they had submitted an affidavit to the effect that defendant-applicant was trying to sell the property, and that, if ultimately the plaintiffs-non-applicants succeeded in their plaint, there would be no means left for recovery from the defendant-applicant. The decision contains no observations regarding prima facie case, the existence of conditions which are normally required to justify the appointment of receiver, etc. There is just the simple mention of the statement in the 'plaintiffs-non-applicants' affidavit. He proceeded to say that on his part the R. A. A. fell into complete confusion. He said in the order that "it is a case of claimed conflicting two wills", although there were no two wills involved. Further in the order he said that "the actual possession on the site is contested", although in the plaint itself possession by the defendant-applicant had been admitted, and the trial court's order itself referred to his possession from 7-11-65. Regarding 'wastage' of the property, the learned R. A. A. , counsel said, adopted a surprising logic saying in the order that "since the title and possession are contested, permitting one party to be in possession during the pendency of the suit would violate against the rights and interests of the other party and to that extent constitutes the wastage of the disputed land. " He did not go into the ingredients required by law and judicial pronouncements for the appointment of a receiver and on the basis of his sentence quoted above upheld the order of the SDO. He gave up the argument adopted by the SDO regarding the possibility of the defendant applicant selling the property etc. Learned counsel proceeded further to say that ordinarily a property can be put under a receiver only if it is in medio or if extra-ordinary circumstances exist, which can not be met by the grant of a temporary injunction. He invited attention to the provisions of sec. 212 of the R. T. Act in this regard. He said that the property was not in medio but was admittedly in the possession of the defendant-applicant. This possession was not as a sheer trespasser but on the basis of adoption and mutation. A prima facie case and balance of convenience were, therefore, in favour of the defendant-applicant rather than on the opposite side. The lower courts had completely disregarded this position and arbitrarily appointed a receiver. He then proceeded to point out the difference between O. 40, R. 1 of the CPC and sec. 212 of the Rajasthan Tenancy Act. While according to O. 40, R. 1, the court may appoint a receiver. Where it appears to the court to be just and convenient to do so, sec. 212 RT Act lays down certain conditions, applicable both in the case of grant of temporary injunction and appointment of a receiver viz. (i) if the property is in danger of being wasted, damaged or alienated by any party thereto or (ii) that any party threatens or intends to remove or dispose of the said property in order to defiant the ends of justice. It is on fulfilment of the conditions of sec. 212 RT Act, that an order for appointment of receiver could legally be given. There was no danger of alienation or disposal of the property in this case by the defendant-applicant. He had submitted an affidavit before the appellate authority that he did not intend to sell the property. That is why the R. A. A. did not adopt this as the basis for upholding the order of the trial court but adopted a new argument that since there was a dispute regarding title and possession, permitting one party to be in possession would amount to wastage of the property. He cited several rulings to support his contention in regard to the circumstances in which a receiver may be appointed and regarding the distinction between O. 40, R. 1 CPC and Sec. 212 RT Act. "the important rulings cited were (i) Narain v/s. Makhan ( 1966 RRD 304 ) in which it has been held that before making an order for appointment of receiver, existence of prima facie case must be examined and that failure to look into prima facie case is fatal to such an order. It was held that where there was failure to determine whether prima facie case existed in favour of the plaintiff before passing an order appointing a receiver, there was material irregularity and illegality in the exercise of jurisdiction in passing the order. (ii) Kalli v/s. Motiram ( 1966 RRD 273 ) in which it was held that it was wrong to apply O. 40, R 1 CPC, when clear provision existed on the subject in the Rajasthan Tenancy Act itself as Sec. 212. The Board refused in this case to consider rulings in respect of O. 40, R. 1 saying that "this is not a case which is covered by O. 40, R. l, but is to be disposed of in accordance with S. 212 of the Rajasthan Tenancy Act, which is a substantive law on the subject. There is a good deal of difference in both these provisions, and we, therefore, refuse to consider any of these rulings. " (iii) Bhenru v/s. Sonia (1960 RRD 82 ). In this again the difference between O. 40, R. l, CPC and Sec. 212 Rajasthan Tenancy Act was examined and it was held that "the Civil Court have to deal with various forms of property and there may arise cases where the property may not be in danger of being wasted, damaged or alienated and yet it may be" just and convent "to appoint a receiver, e. g. , cases where rights to corporation or trust property are in dispute. To safeguard the interests of minor persons interested in that property it may be necessary to appoint a receiver. It may also be necessary to use this discretion in matters of public utility or liquidation proceedings. The revenue courts, on the contrary, have within their jurisdiction agricultural tenancies only. In such cases, the legislature intended to allow the courts to appoint a receiver only where the property is in danger of being wasted, damaged or alienated. This view of the matter should, therefore, govern the present case. " (iv) Motisingh v/s. Kishtura ( 1960 RRD 43 ) in which it was held that a receiver should be appointed only when the property is in medio and that"the mere fact that a plaintiff in his plaint makes violent charges of malversation against the defendant in possession, is no ground for the appointment of a receiver. " It was also observed that "a mere allegation of waste etc. , is not enough. There must be proof of actual or reasonably apprehended danger of such waste or damage before an injunction can be granted. In the present case we are unable to find any of the above conditions or a proof about the existence of any of the essential ingredients of Sec. 212 of the Act. There is a bald affidavit of the applicant that the defendant was threatening to interfere with his possession. This has been controverted by the defendant as well. " Revision application in the case was accepted and the lower court's order appointing a receiver was set aside. (v) Surendrasingh v/s. Mangla ( 1964 RRD 240 ) in which it was held that order for appointment of receiver is not necessary where the defendant is restrained - from wasting etc. the land in any manner. Learned counsel for the non-applicants first argued on the scope of revision u/s. 230 of the Rajasthan Tenancy Act. He said that this is limited to cases in which jurisdiction not vested has been exercised, or jurisdiction vested has not been exercised, or there has been illegality or material irregularity in the exercise of jurisdiction. The last condition meant that the illegality or material irregularity must be in the exercise of the jurisdiction. A wrong or erroneous judgment does not fulfil this condition. Since this is well settled law citation of rulings was not necessary. He proceeded to say that an other of appointment of a receiver is not a decision or judgment to attract the provisions of Sec. 230 of the R. T. Act regarding revision which refers only to "case decided that is to say, to decision and judgments. He cited Narayanlal vs. Ramesh Chandra (1968 RRD 136) in support of the contention that 'decision' in synonymous with 'judgment' and since the order of appointment of a receiver is not a judgment it cannot be treated as a decision and cannot therefore, be a subject matter of revision. " In reply to the argument that a receiver could be appointed only if the conditions mentioned under (1) & (b) in Sec. 212 of the R. T. Act, he invited attention to Nanuram vs. Juwara (1964 RRD 259 ). It was stated in this judgment that "it is now settled law that a Revenue court can invoke its inherent powers where the circumstances so warrant and that the revenue courts are not restricted in exercise of the inherent powers in the grant of a temporary injunction which can be granted in appropriate cases to restrain a party from interfering in the possession of the applicant. Sec. 212 of the R. T. Act is not exhaustive and cannot be supposed to cover all possible eventualities. Therefore, where ends of justice to require, inherent powers can be invoked". He said that the ruling would apply to the appointment of a receiver also. He also invited attention to the Board's in 1965 RRD 69 in which it was held that if circumstances had been considered by the lower courts and prima facie case of possession found, no illegality could be considered as attaching to the orders of the lower courts. On the question of adoption of the applicant, he said that the alleged adoption was a fiction. The adopter Kesarbai was ill in hospital in Jaipur, on the date on which the adoption is alleged to have taken place. I have carefully considered the arguments advanced. In regard to the question of appointment of receiver in circumstances not covered by those stated in Sec. 212 R. T. Act, I consider that the judgment in 1964 RRD 259 cited by the learned counsel for the non-applicants, puts the matter clearly. The effect of this judgment, read with the earlier judgments cited by the learned counsel for the applicants, is that ordinarily a receiver can be appointed only in circumstances laid down in Sec. 212 of the R. T. Act but that there may, in exceptional cases, be circumstances which may not fall in the four corners of Sec. 212 but in which it may be considered by the court to be necessary to appoint a receive to meet the ends of justice. In such circumstances the court may invoke its inherent powers to appoint a receiver. I would, however, observe that the inherent powers of the court, beyond the powers specifically conferred by Sec. 212, can be invoked only in very exceptional circumstances. The appointment of a receiver is one of the harshest remedies and even in the circumstances given in Sec. 212 RT Act, it should be exercised with great care and caution, and ordinarily only if a temporary injunction is not considered adequate. Where circumstances of Sec. 212 do not exist, much stronger and very, exceptional circumstances must be shown to exist before a receiver can be appointed by invoking the inherent powers of the court. As to whether an order appointing a receiver is a 'case decided' in terms of Sec 230 of the R. T. Act, and can be a subject matter of revision, I consider that the ruling in 1968 RRD 136 is hardly applicable. That ruling relates to the proviso to sub-sec. (1) of Sec. 10 of the Rajasthan Land Revenue Act, pertaining to special appeals. In that proviso both the words 'decision' and 'judgment' have been used to refer to one and the same thing. There, they are certainly used in the same sense and the tests applicable to a 'judgment' will apply to a 'decision' of a single Member before a special appeal against it can be entertained. That may not be the position in respect of the provisions of S. 230 of the RT Act where the word 'judgment' has not at all been used, and the words used are 'case decided'. It is quite possible to argue that when a lower court decides an application for appointment of a receiver and decides that the relief asked for should be granted and orders the appointment of a receiver, it decides a case, even though this may be during proceedings pertaining to a suit or appeal. The appointment of a receiver is a case by itself and not a mere step in the trial of a suit. The Board has on this consideration been entertaining and deciding revision applications in respect of the appointment of receivers. I, therefore, see no justification to reject this application as un enter-tainable.
(3.) IN this case, the trial court passed the order only on the basis of the affidavit by the plaintiff-non-applicants that the defendant-applicant was intending to sell the property. As the defendant applicant gave an affidavit dated 8-8-67 in the R. A. A's. court, that he had no intention to sell the property, the learned R. A. A. adopted a new argument, that "permitting one party to be in possession during the pendency of the suit would violate against the rights and interests of the other party and to that extent constitutes the wastage of the disputed land". I must say that this is a very dangerous doctrine to propound If this is accepted, whenever there is a dispute, a receiver will be considered justified. He did not examine with any case the question of prima facie case and apprehended injury, which are the basic considerations for the appointment of a receiver. He disregarded even the fact regarding possession. The trial court's order itself accepted the position that the defendant-applicant had been in possession since 7-11 65. It is one of the accepted principles for the appointment of a receiver that an order appointing a receiver will not ordinarily be made where it has the effect of depriving a defendant of a defect possession since that might cause irreparable wrong. As the affidavit given by the plaintiffs that the defendant was intending to sell the property, had been met by the affidavit of the defendant in the first appellate court that he had no such intention, and as the defendant was admittedly in de facto possession and that too on the basis of claimed adoption, hardly any circumstances remained to justify the adoption of this harshest of remedies. The power to appoint a receiver, which has been described as an "exceedingly delicate and responsible duty" was thus exercised without regard to the principles which according to law and judicial pronouncements are required for the appointment of a receiver. A wholly new and legally untenable ground (quoted in para 16 above) was adopted by him to uphold the appointment of a receiver. I have no hesitation, therefore, in Holding that the R. A. A. 's order in this case involves an illegality in the exercise of his jurisdiction in the matter of appointment of a receiver. In order to alloy the fears of the non-applicants, counsel for the applicant gave an undertaking at the bar on behalf of the applicant that the applicant would not sell, mortgage or otherwise alienate the property during the pendency of the suit. The applicant shall remain bound by this undertaking. If any new situation threatening the alienation or waste of the property arises, the non-applicants will, of course, be tree to make a fresh application to the trial court for appropriate relief under Sec. 212 of the Rajasthan Tenancy Act. With these observations, the revision application is accepted, in consequence of my conclusion in para 17 above, and the orders of the lower courts are set aside. .;