- (1.) BOTH these revisions arise out of a single appellate order of the Additional Commissioner, Jaipur dated 30. 11. 55 and will be disposed of by this judgment.
(2.) PUT briefly the facts of the case are that the plaintiff Shrimati Thakurani Chauhaniji, wife of Th. Ganpat Singh filed a suit against the defendant Ram Dev in the court of the Assistant Collector Jaipur on 13. 10. 55 for recovery of possession over the land in dispute with the allegations that till Svt. 2010 the land was in personal cultivation of the Jagirdar who had employed one Bhura and Ramdeo defendant as his servant for cultivation on wages of 4 mds. of grain per month, that in Svt. 2010 the Jagirdar gave the land in dispute in Hawala to the plaintiff through a patta which was executed in Smt. 2007, that the plaintiff also engaged Bhura and Ramdeo as her servants, that Bhura and Ramdeo executed an agreement to that effect but that in Sept. 1955 the defendant took over wrongful possession in the capacity of a trespasser and was preventing the plaintiff and her other servants from attending to the crop which was standing on the land in dispute and had prevented the plaintiff from taking possession of the land as well. The plaintiff therefore prayed for a decree for the recovery of possession of the land in dispute against the defendant. Simultaneously with this plaint, an application was presented on behalf of the plaintiff praying for appointment of a receiver in respect of the standing kharif crop on the land in dispute on the ground that it was likely to be removed and taken away by the defendant which would cause irreparable loss to her. The learned trial court passed the following order : - "on going through the documents and affidavit, it appears that Ramdeo defendant has taken possession of the standing crops and is not allowing the plaintiff to supervise it, that he was engaged as a servant but is now behaving like a master and is bent upon depriving the plaintiff of the fruits of the harvest. Therefore under Order 38 C. P. C. the standing crop over the land in dispute be attached through Naib Tehsildar Govindgarh who should be asked to take possession over it in the capacity of a receiver. A notice be issued to the defendant to show cause against attachment before judgment. " The defendant appeared before the trial court on 31st Oct. , 1955, and objected to the interim order on the ground that he had been in possession of the land in dispute since long and that the plaintiff had filed the suit with wrong allegations Towards the end of his application, he however stated that, if necessary, a security may be taken from him for the attached crop which should however be restored to his possession. On 3rd Nov. , 1955, after examining the allegations in the plaint and the objections raised by the defendants, the trial court confirmed its order regarding the attachment of the crop and appointment of a receiver. The defendant went up in appeal before the learned Additional Commissioner, Jaipur. He came to the conclusion that the affidavit filed by the plaintiff contained only vague allegations, that no specific instance whereby any apprehensions of damage or waste to the property may be presumed were shown to exist in the case It was also observed by the learned Additional Commissioner that the trial court did not exercise its discretion properly in appointing a receiver. But strangely enough even in the face of this finding, instead of setting aside this order, the learned Additional Commissioner refused to interfere with it on the ground "as the receiver has already been appointed. I do not think it proper to interfere with the said order. " It however throught it proper to modify the order and direct that the defendant on furnishing adequate security to the extent of the value of the standing crop as appraised by the lower court be given possession of the land and every crop that is raised by him during the pendency of the suit be dealt with in a similar manner. Both the parties have come up in revision against this order before us. We have heard the learned counsel for the parties and have examined the record as well. Much stress has been laid before us during the course of arguments that the words "just and convenient" in Order 40 Rule I do not imply justice and convenience only for one party but justice and convenience according to judicial notion of what is right and just 1955 R. L. W. page 345 (Dhonkal Singh vs. Ridmal) was cited in this connection. 19)3 R. L. W. 303 was also quoted at the bar. The observations of Lord Cramwerthin. Chitleys C. P. C. page 2944 were also relied upon. It was laid down therein that "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. " It is however to be pointed out that the powers for injunction and appointment of a receiver which can be exercised by a revenue court are contained in sec. 212 Rajasthan Tenancy Act, 1955. The provisions of Order 40 Rule I C. P. C on this point, therefore, will not be applicable as laid down in sec 208 (a) of the Act as the provisions of the Code will be inconsistent with the provisions of the Act and will not be applicable "so far as the inconsistency extends. " Sec. 212 of the Rajasthan Tenancy Act runs as follows : - (1) If in the course of any suit or proceeding under this Act it is proved by affidavit or otherwise : - (a) that any property to which suit or proceeding relates is in danger of being wasted, damaged or alienated by any party thereto, or (b) that any party to such suit or proceeding threatens or intends to remove or dispose of the said property in order to defeat the ends of justice. the court may grant a temporary injunction and. if necessary, appoint a receiver. (2) Any person against whom an injunction has been granted or in respect of whose property a receiver has been appointed under sub-sec. (1) may offer cash security in such amount as the court may determine to compensate the opposite-party in case the suit or proceeding is decided against such person, and on depositing the amount of such security, the court may withdraw the injunction or the order appointing a receiver, as the case may be. " It will be apparent from this section that the court is not authorised to grant an injunction and appoint a receiver where-ever it appears to it to be "just and convenient", It must be satisfied that either the property to which such suit or proceeding relate 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 pointed out earlier the present suit is for recovery of possession over the land in dispute. There is no allegation that it is in danger of being damaged, alienated or wasted. Similarly it is inconceivable that any party can threaten to remove it or dispose it off and to defeat the ends of justice. This has not at all been alleged by the plaintiff. Thus the essential conditions on the fulfilment of which action can be taken under sec. 212 of the Act are completely lacking in the case and hence the trial court had no jurisdiction to appoint a receiver. Further we may also point out for the guidance of the subordinate courts that as the section stands it is essential that the first step to be taken under this section is the grant of a temporary injunction and if it is found necessary then only, after the grant of a temporary injunction can a receiver be appointed. In the present case according to the plaintiff's own showing the land has been in possession of the defendant. It is up to her to prove that the defendant occupies the status of a servant as this has been denied by the defendant who alleges himself to be a tenant of a long standing. The actual nature of possession is entirely a matter of evidence which will be eventually led by the parties during the trial of the suit. At present, there are no reasonable grounds to presume that the property in suit is in danger of being damaged, wasted or alienated. The appointment of a receiver would deprive the defendant of possession at this stage which under the circumstances of the case does not appear to be proper or reasonable. It may also be pointed out that the plaintiff had applied for appointment of a receiver in respect of kharif crop then standing and the learned Additional Commissioner, was not justified in passing the standing order for all the crops as and when they may be raised by the defendant. For these reason, we would, allow these revisions, set aside the orders of the lower-courts and direct that the application presented by the plaintiff for attachment of the crop and appointment of a receiver shall stand rejected.;