- (1.) THIS is an appeal by Mst. Goran and Bhonrilal defendants against the order of the learned District Judge, Jaipur City, appointing a receiver to realise the income from the property in suit.
(2.) THE plaintiffs, who alleged themselves to be trustees of a certain trust called "champalal Gopi Krishna Sahu Trust", created by Mst. Pokhli, averred in the plaint that the properties in suit belonged to Mst. Pokhli, who obtained a decree from the civil courts, Jaipur, against Mst. Goran for possession of those properties. THE decree was obtained from the original court on the 4th of April, 1936, and was confirmed by the Jaipur Darbar on the 9th of December, 1939. THE plaintiffs alleged that they obtained possession of the properties in suit in execution of the aforesaid decree on the 31st July, 1938, but thereafter the defendant, Mst. Goran, took possession of the properties illegally, and began to realise rents from the tenants. In their application for receiver the plaintiffs say that Mst. Goran has got no property from which the mesne profits might be realised in case the plaintiffs obtained a decree for possession and mesne profits. In order to show the financial position of Mst. Goran, the plaintiffs filed a copy of the plaint in a suit filed by Mst. Goran against Mst. Pokhli for maintenance in forma pauperis, and also a statement of Mst. Goran in the said suit recorded on the 13th of October, 1945. Mst. Goran had stated therein that she had no means to pay the court-fee. Mst. Goran and another defendant Bhonri Lal opposed this application for the appointment of receiver, but the learned District Judge held that it was just and convenient that a receiver be appointed in the case to realise the income of the property in suit. Against this order of the learned District Judge, Mst. Goran and Bhonri Lal have filed this appeal. It has been argued by Mr. M. M. Tiwari on behalf of the appellants that the learned District Judge did not apply his mind to the conditions necessary for the appointment of a receiver. He argued that a receiver could be appointed when there we're circumstances which made it just and convenient that a receiver be appointed; but in the present case there were no such circumstances. He relied upon the observations of Lord Cranworth L. C. in the case of Owen vs. Homan (1) ( (1853) 4 H. L. Cas. 997. ). It was observed by his Lordships that: "the receiver must be appointed on the principle on which the Court of Chancery acts, of preserving property pending the litigation which is to decide the right of the litigant parties. In such cases the Court must, of necessity, exercise a discretion as to whether it will or will not take possession of the property by its officer------Where indeed the property is as it were, in medio, in the enjoyment of no one the Court can hardly do wrong in taking possession. It is the common interest of all parties that the Court should prevent a scramble------------But where the object of the plaintiff is to assert a right to property of which the defendant is in the enjoyment, the case is necessarily involved in further questions. , The Court, by taking possession at the instance of the plaintiff may be doing a wrong to the defendant, in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may, by its interim interference, have caused mischief to the defendant, for which the subsequent restoration of the property may afford no adequate compensation. " He also referred to the ruling of their Lordships of the Privy Council in the case of Benoy Krishna Mukerjee and others vs. Satish Chandra Giri and others (2) (A. I. R. 1928 Privy Council 49.), in which it was held that on an interim application for a receivership the Court had to consider whether special interference with the possession of a defendant was required, there being a well-founded fear that the property in question would be dissipated or that other irreparable mischief might be done unless the Court gave its protection. Some other rulings have also been cited by the learned counsel for the appellants, but, more or less, they have followed the principles laid down in the above two rulings. Mr. Tiwari has not contended that no decree was obtained for the possession of the property in suit by Mst. Pokhli against Mst. Goran. He has, however, contended that Mst. Goran's possession has ripened into adverse possession by full 12 years' continuous possession of the property, and, therefore, it cannot be said that the plaintiffs have prima facie title. On behalf of the respondent, it has been argued by Mr. G. C. Kasliwal that there can be no dispute that prima facie title lies with the plaintiffs because they have got a decree against the defendants in respect of the very same property which is the subject matter of dispute in this case. He has argued that it has to be seen whether the appellants have perfected their title by adverse possession. He has also urged that not only the plaintiffs have a prima facie title to the property in suit, but it is quite just and convenient that a receiver for realisation of income be appointed, because Mst. Goran has got obviously no means, and it would be not possible to realise anything on account of mesne profits from her in case the plaintiffs obtain a decree. He has relied upon John vs. John (1) ( (1898) 2 Chancery Division 573. ). It was held in that case that: "the Court has a discretionary power to appoint a receiver whenever it appears to the Court to be just and convenient, and this power may be exercised where the plaintiff is seeking to recover land by a legal title. The discretion must be exercised with a view to all the circumstances of the case. Among other things, it is important to bear in mind the position of the tenants, who, if the defendant is not a person of undoubted solvency and remains in receipt of the rents, may be called upon to pay twice over if the plaintiff succeeds. The Court has also to consider the probability of the plaintiff's succeeding, and the length of the defendant's possession, and whether he has any prima facie title. Where therefore the plaintiff sought to recover land by a legal title, and the title of the defendant, who was a person of small means, appeared to be shadowy, and the plaintiff's title appeared to be satisfactorily made out, subject to a point on the construction of a will which the Court considered very unlikely to be decided against him, a receiver ought to be appointed. " We have considered the arguments of both the learned counsel. Under Order XL, Rule 1, of the Code of Civil Procedure, it is the discretionary power of the court to appoint a receiver. It is a well-known principle that where an act is done by a court in its discretionary power, higher court should be slow to interfere with the order, unless the discretion has been exercised arbitrarily or capriciously or against the well-settled principles of law. It was observed by their Lordships of the Privy Council in the case of Benoy Krishna Mukerjee and others vs. Satish Chandra Giri and others (2) (A. I. R. 1923 Privy Council 49.), mentioned above, that in the absence of special circumstances or some unusual occasion for its exercise, the power of making interlocutory orders was not a suitable subject for review. Similarly, in a ruling of the Sind Chief Court, viz Mst. Nikan-bai vs. Dassimal Gangaram and others (3) (A. I. R. 1918 Sind 61.), cited by the learned counsel for the appellants, it has been held that a court of appeal will be slow to interfere with the discretion of the lower court in the appointment of a receiver, and would interfere only if satisfied that that discretion has not been exercised in accordance with settled principles of law. We have, therefore, got to see whether the discretion which has been exercised by the learned District Judge in this case has been exercised capriciously, arbitrarily, or against the well-settled principles of law. From the judgment of the learned District Judge, we find that he had before him the necessary conditions for the appointment of a receiver. He has held that the plaintiffs have a prima facie title, and that for rebutting the prima facie case of the plaintiffs, the defendants shall have to prove adverse possession. He has also held that the defendants are not persons of great means, and undoubtedly the plaintiffs, if they succeed in their suit, will experience difficulty in having the money decree enforced. On these findings he has considered it fit to appoint a receiver only for the purpose of collecting rent from the tenants of the suit property and depositing it in court. The receiver has not been authorised to interfere in any way with the possession of the occupants. On the materials on record in this case we do not find that these findings of the learned District Judge are either arbitrary or capricious. Material has been placed on the record by the plaintiffs in order to show their prima facie title, and also to show that the defendants do not possess such means as to be able to satisfy any decree for mesne profits, if passed. There is also danger of the tenants being called upon to pay twice, if they pay rent to the appellants at present, in case a decree is made in favour of the plaintiffs. The facts in the case John vs. John (1) ( (1898) 2 Chancery Division 573.), cited above, very much resemble the facts of the present case, and the law in India as to receivership, as indicated in Order XL, rule 1, is similar to the law obtaining on the subject in England. The learned counsel for the appellants has very much stressed the long possession of the defendants. Wherever, however, advantage of long possession has been given to the defendant, it has been a case of bona fide possession. In the present case, on the materials on the record, it cannot be said that the possession of the defendants is bona fide possession. It might be that Mst. Goran might be able to prove her adverse possession, but until it is done, the fact remains that by the decree in the previous case Mst. Pokhli has got a prima facie title to the property in suit. We do not find any force in the appeal, which is dismissed with costs to the contesting respondent. .;