H. N. TILHARI, J. ( 1 ) THIS is an appeal under Order 43, Rule 1 of the Code of Civil Procedure from the judgment and order dated 13-4-1994, passed by Sri G. T. Veerabhadrappa, Principal Civil Judge, Mangalore, on LA. No. 20 under Order 40, Rule 1 of the Code of Civil procedure, hereinafter referred as, the 'code' which had been moved in the regular suit O. S. No. 87 of 1991, for partition of the suit schedule properties by metes and bounds into 383 equal shares taking into consideration the good and bad soil and allot and put the plaintiffs and defendants 1 to 9 in possession of 369 such shares and directing the defendants 95 to 136 to hand over possession of the same. The plaintiffs had also claimed future mesne profits at such rates as may be fixed by Court commensurate to their shares. ( 2 ) IN the application for appointment of Receiver made under Order 40, Rule 1 of the Code supported by affidavit, it had been stated that the entire property is being enjoyed by the defendants and the entire income therefrom is being misappropriated by the opposite parties-defendants, namely defendants 95, 103, 113 and 135. It had further been asserted that the four respondents have been cutting down and removing the valuable trees and were committing waste and damage to the property as well as they were trying to induct strangers into possession of the portions of the properties, so as to adversely affect or harm the interest of plaintiffs and other defendants in the suit. The plaintiffs-applicants as such prayed therein for appointment of Receiver with a direction to the Receiver to take possession of the property and to collect income of the properties in order to safeguard the interests of the parties. ( 3 ) OBJECTIONS to this application of the plaintiffs had been filed by one Gopala, who has been defendant 135, in the suit and appellant 11, in the memo of appeal. It was asserted that plaintiffs had no right to the suit schedule property and they are not entitled to claim any relief including the present application and it was not maintainable. In the objections it was also asserted that it is wrong to say that the defendants have got only small fraction of shares. It was asserted that plaintiffs had no right to the suit schedule property and they are not entitled to claim any relief including the present application and it was not maintainable. In the objections it was also asserted that it is wrong to say that the defendants have got only small fraction of shares. Paragraph 3 states that it is denied that the entire property is enjoyed and the income is misappropriated by the respondents and that they have got small fraction of share. The objector-defendant 135, also denied the allegations of cutting of the trees as well as allegations to the effect that the opposite parties during the interim applications, were inducting strangers into possession of the portions of the properties. The learned Trial Court considered the matter and as mentioned earlier, the learned Trial Court allowed the application on following basis and considerations: (a) By granting of interim injunction order dated 20-3-1992, defendants 95, 103, 113 and 135 were restrained from cutting and removing the timber from suit schedule property and in view of that very fact, the Court further observed, that, thus it was shown and proved that the defendants were trying to cut, remove and dispose off the timber, i. e. , they tried to commit the waste and damage in respect of suit schedule property, (b) The trial Court in its order further mentioned that the shares of the plaintiffs and defendants 1 to 94 are about 369 out of 383 shares, but the four defendants, namely defendants 95, 103, 113 and 135 were in possession, that is the four respondents are opposite parties to the application for appointment of Receiver, who were in exclusive possession of the suit properties. In such a situation, others were being deprived of the benefits and in the event of decree being passed, it will create lot of complications and difficulties in getting the mesne profits determined and there will be lot of difficulties in reaping the fruits of the decree in respect of mesne profits from the four respondents, who are in possession of the entire property. It opined that when majority of the parties are excluded from the possession, it is only few persons having only little share in suit property, who are in possession of the entire property, then the major parties who are excluded from possession, though entitled to major share, are entitled to get by the appointment of Receiver. It further opined that order passed on LA. 19, also indicated that four defendants were damaging the property, while their shares will be too less than that of plaintiffs-applicants and defendants 1 to 94. Under the circumstances, it opined in the interest of justice, it would be proper to appoint a Receiver in respect of agricultural land and it did pass the order. ( 4 ) FEELING aggrieved from this order, the four defendants, who are in possession of the entire property and enjoyment of the property along with 7 others have preferred this appeal in this court. The defendants, who preferred are defendants 95, 97, 99, 101,103,110, 113, 114, 116,118 and 135. ( 5 ) I have heard the learned Counsel for the appellant Sri A. K. Keshava Bhat at great length. Sri Keshava Bhat submitted that the defendants are not wasting the property. He further submitted that the plaintiffs are not entitled to any shares in the property and written statement had not so far been filed till before the date of filing of the appeal, that is even till the date of passing of the order. He submitted that before the parties could file the written statement, the application for appointment of receiver should not have been disposed of and so, the appointment of Receiver is premature. Sri Keshava Bhat further submits that appointment of Receiver is illegal and bad in law. In a partition suit, when some of the parties were in possession, those parties should not be dispossessed from the properties until final decision of the suit. Sri Keshava, before me placed reliance on certain observations of this Court in the case of aisamma and Others v Mohammad and Others. Sri Keshava bhat, also made reference to the decision of this Court in the case Eliax Begam and Another v Abdul Haleem and Others. ( 6 ) I have applied my mind to the contentions made by the learned Counsel for the appellant. Sri Keshava bhat, also made reference to the decision of this Court in the case Eliax Begam and Another v Abdul Haleem and Others. ( 6 ) I have applied my mind to the contentions made by the learned Counsel for the appellant. Before I proceed to examine whether the arguments of Sri Keshava Bhat has got any substance, I think it would be proper to reproduce Order 40, rule 1 of the Code. Rule 1 of Order 40 of the Code reads as under: "rule 1. Appointment of Receivers. (1) Where it appears to the Court to be just and convenient, the Court may by order (a) appoint a Receiver of any property, whether before or after decree; (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the Receiver; and (d) confer upon the Receiver all such powers, as to bringing and defending suits and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the court thinks fit". ( 7 ) A reading of the rule per se reveals that a discretionary power has been conferred on the Court to make appointment of receiver, where it appears to be just and convenient to it to make the appointment. That can be made before the decree as well as after the decree. It can also by the order remove any person from the possession or custody of the property or commit the same to the possession, custody and management of the receiver and confer the powers upon Receiver as indicated in clause (d) of Rule 1 of Order 40. The expression 'just and convenient' is guiding factor. Discretion is not unbridled or uncontrolled, it is controlled by expressions "just and convenient". What is just and convenient has to be interpreted in the light of the interest of justice to the parties and convenient may indicate the sense that it may help in avoiding the multiplicity of legal proceedings. This expression has subject-matter of interpretation by this Court. ( 8 ) IT would be profitable to refer the observations laying down the principles of law made by this Court in certain cases. This expression has subject-matter of interpretation by this Court. ( 8 ) IT would be profitable to refer the observations laying down the principles of law made by this Court in certain cases. In the aisamma's case, supra, by his Lordship Justice Govinda Bhat, which read as under: "this Court, in appeal, would be slow in interfering with the discretion exercised by the Trial Court unless it is shown that the order is arbitrary, capricious, unreasonable or that it is not made in accordance with sound judicial principles. Appointment of a Receiver is made where it appears to the Court just and convenient in the circumstances of the case. The fact that the Court has the discretion to appoint a Receiver for the property in suit, where it appears just and convenient, does not mean that the Court has to appoint a Receiver merely because the court thinks it convenient; the expression 'just and convenient' means that the Court should make the appointment for protection of rights or prevention of injury. The Court has to consider whether special interference with the possession of the party to the suit is required, there being well founded fear that the property in question will be dissipated or that irreparable mischief may be done, unless the Court gives its protection. The discretion of the Court has to be exercised for the purpose of promoting ends of justice. In partition suits between legal co-owners of land, as stated in Pomeroy's Equity jurisprudence, Vol. 4, II Edition, para 1507, a Receiver is not usually appointed unless some of the parties are in sole possession, to the exclusion of the others. Beyond this statement it is difficult to formulate any rule that will be supported by authority. In a well-considered case in georgia it was held 'that a Court of enquiry has jurisdiction to appoint a Receiver, at the instance of one tenant-in-common against his co-tenants, who are in possession of undivided valuable property, receiving the whole of the rents and profits and excluding their companions from the receipt of any portion thereof, when such tenants are insolvent. Courts are averse to appointing a Receiver over personal property at the suit of one co-owner against the other; and in a suit for the partition of such property will refuse a Receiver if the defendant in exclusive possession will give adequate security against the deterioration or destruction of the property and to compensate the plaintiff for its use'. The Court may abstain from appointing a Receiver where the co-tenant in possession offers to submit to any terms imposed by the court. The Court in deciding whether it is just and convenient' to appoint a Receiver is guided by the above legal principles". A reading of this decision per se reveals that ordinarily order appointing Receiver passed by the Trial Court shall not be interfered within an appeal unless it is shown to be unreasonable, arbitrary, capricious or it has not been made in accordance with the sound principles of law. The other principles, that emerge from this decision are, that expression 'just and convenient, means that Court should make appointment for the protection and preservation of the rights of parties to litigation and preservation of property and to save its user detrimental to the rights and interest of parties to the litigation. It has to consider whether special interference with the possession of any of the parties over property in suit is required and the yardstick to apply is whether there is well-founded fear that the property in question will be used, damaged, destroyed or alienated or like to the detriment of the interest of parties seeking appointment of Receiver or such a mischief may be done, unless Court gives its protection and that the exercise of jurisdiction is imminent to preserve the interests of justice between the parties. It further reveals another very material principle that Receiver may be appointed where some of the parties are in exclusive possession or in sole possession of the property to the exclusion of others and are enjoying and receiving the benefits and profits arising from their property, excluding their companions or co-owners from the receipt of any portion. It further reveals another very material principle that Receiver may be appointed where some of the parties are in exclusive possession or in sole possession of the property to the exclusion of others and are enjoying and receiving the benefits and profits arising from their property, excluding their companions or co-owners from the receipt of any portion. The principle that emerge is that if some of the defendants or any of the defendants or parties are in exclusive possession then such person, i. e. party in exclusive possession" may be called upon to give adequate security against deterioration or destruction of the property and to compensate plaintiff and other parties not in possession thereof for its use, or even it can appoint the co-owner as Receiver if he is ready to act as such on the terms fixed by the Court, instead of any outsider being put into possession, but if the person is not willing to give adequate security or to take responsibility as Receiver to deposit the income and to act on terms of the Court. The third person may be appointed as Receiver by the Court. ( 9 ) IN the case of Abdulla v N. B. Ali, Hon'ble Venkatachaliah, J. , as he then was, laid it down and observed as under: "when an application of this kind is made for the appointment of a Receiver in an action for accounts of dissolved firm on contested facts, decision whether or not to appoint a Receiver would necessarily have to be taken at a time when the existence of the alleged right or its violation or both are uncertain and continue to remain uncertain until the final judgment. It is to mitigate the risk to plaintiff during the period before that uncertainty could be resolved that the question of protecting his interest by way of interlocutory orders arises. The first endeavour of the Court in this exercise would be to find out whether plaintiff has made out a prima facie case. That concept of prima facie case mean no more than that the Court be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be investigated. The first endeavour of the Court in this exercise would be to find out whether plaintiff has made out a prima facie case. That concept of prima facie case mean no more than that the Court be satisfied that the claim is not frivolous or vexatious and that there is a serious question to be investigated. In deed, in American Cynamid Company v Ethicon Limited, (House of Lords) Lord Diplock, speaking for the House of lords, has had this to say of what a prima facie case in this context means: "15. Your Lordship should in my view take this opportunity of declaring that there is no such rule. The use of such expressions as "a probability", "a prima facie case" or "a strong prima facie case" in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The Court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. 16. It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed arguments and considerations. These are matters to be dealt with at the trial. . . . ". In the present case, it cannot be said that plaintiff's case is either frivolous or vexatious and that there is no serious question to be investigated in proceedings. . . . In these circumstances, the Court ought to proceed with a view to preserving in status quo the right of the plaintiff and to ensure that no irreversible or uncompensatable injury is occasioned to him, should he ultimately turn out to be right at the trial. . . . In these circumstances, the Court ought to proceed with a view to preserving in status quo the right of the plaintiff and to ensure that no irreversible or uncompensatable injury is occasioned to him, should he ultimately turn out to be right at the trial. ( 10 ) IN Kerr "on the Law and Practice as to Receivers", (1977) (Fifteenth Edition), adverting to the object of appointing a receiver in an action between partners, it is observed: "a Receiver can only be properly appointed for the purpose of getting in and holding or securing the funds or other property, which the Court at the trial, or in the course of the action, will have the means of distributing amongst, or making over to, the persons or person entitled thereto, the object sought by such appointment is therefore the safeguarding of the property for the benefit of those entitled to it. There are two main classes of cases in which the appointment is made: (1) to enable persons who posses rights over property to obtain the benefit of those rights and to preserve the property pending realisation, where ordinary legal remedies are defective; and (2) to preserve property from some danger which threatens it". ( 11 ) THE same principles of law has been laid down in the Eliax Begam's case, supra, where Hon'ble Mr. Justice Navadgi, has been pleased to observe that appointment of Receiver in a partition suit where some of the parties are in sole possession of the properties to the exclusion of others, would be a normal practice (see paragraph 30 ). ( 12 ) KEEPING in view these basic principles of law, when I test the order passed by the learned Trial Court, in my opinion the order of the Trial Court appointing the Receiver does not suffer from any error of law or jurisdiction. It is a case where the properties are in the sole and exclusive possession of the four defendants or of some of the defendants in particular like defendants 95, 113 and 135. It is a case where the properties are in the sole and exclusive possession of the four defendants or of some of the defendants in particular like defendants 95, 113 and 135. Even if some defendants are in possession, but when the plaintiffs or other defendants are not in possession and the properties are agricultural properties which are likely to fetch profits from the cultivation as well as the trees standing thereon, it would not be in the interest of justice that those parties in possession must be allowed to enjoy the properties to the exclusion of others and even to grab the properties or usufructs of the shares which other parties that is the plaintiffs and other defendants may establish to be having in the properties. There was also apprehension of trees being cut and removed. So, injunction order was also obtained. The claim of mesne profits have also been made. When the usufructs and properties arising from the agricultural property are taken and collected at one place, the Receiver works for the Court, it may be easier for him to allot to them their shares, otherwise there may be problem of assessing the usufructs from the properties. Looking to these circumstances in my opinion, the order passed by the Trial Court appointing Receiver has been just and proper. No doubt, the Trial Court has not specified any specific person, who shall be the Receiver. An appeal having been filed and interim order of stay having been obtained by the four defendants along with certain others, they must be enjoying the property to the exclusion of others, the plaintiff and other sharers. For appointing a Receiver, a person has to be nominated and as to who should be appointed. An appeal having been filed and interim order of stay having been obtained by the four defendants along with certain others, they must be enjoying the property to the exclusion of others, the plaintiff and other sharers. For appointing a Receiver, a person has to be nominated and as to who should be appointed. It may be kept open to the trial Court that if the defendants are prepared to furnish quarterly accounts of the income, that is the profits after due accounting of income and expenditure and to deposit the profits with the Court, as well undertake not to damage, destroy or alienate the property in suit then in that case, it may be open to the Court below to appoint any of defendants to be the Receiver of suit properties provided he furnishes the security as well as undertaking as mentioned above as well as to act, subject to the supervision and control of the Court, but if none of the parties or defendants are ready, then third party may be a lawyer-cum-Receiver or any other person may be appointed as receiver, on the terms and condition deemed fit by Court below to act under the control and the supervision of Court. ( 13 ) SUBJECT to the above observations, it is held that the order passed by the Trial Court appointing Receiver is affirmed and for the purpose of consideration, proposals of the names of the persons with the date of the Receiver, the Court may take suitable action for appointing the specific person to be the receiver. ( 14 ) HENCE, the appeal filed by the appellant is here by dismissed as being without substance. Costs are made easy, that is parties to bear the costs of this appeal. --- *** --- .