A suit for the appointment of a receiver is not maintainable unless there is a pre-existing action in which a substantial right is being agitated.

RAMAPRASADA RAO, J.:- The Kazimar Periya Pallivasal, Kazimar Street, Madurai, represented by its trustees, who are the plaintiffs in O.S. 388 of 1968 on the file of the Subordinate Judge, Madurai, are the appellants. The plaintiffs filed a bare suit for the appointment of a receiver for the suit lands for certain ancillary directions in the following circumstances. The Pallivasal owns properties in Iruvathanallur limits, Madurai, District, and the defendants are said to be the lessees in occupation of such lands belonging to the Pallivasal which they have been cultivating on a waram basis. After the passing of the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, (Madras Act 30 of 1963), the inams came to be vested in the Government under Section 3 of Act 30 of 1963 and in consequence thereof and as ordained by the provisions of the Act there was an enquiry as to the nature of the rights to which the plaintiffs and the defendants would be entitled to. In the first instance, the Settlement Tahsildar granted a ryotwari patta in favour of the defendants. On appeal, the Appellate Tribunal set aside the order; and a re-enquiry was directed to be made by the Settlement Tahsildar. It is now reported that on such re-enquiry patta was granted in favour of the Pallivasal, but the defendants have taken up the matter on appeal to the Tribunal (Land Tribunal, Madurai) and the same is pending there.

2. According to the plaintiffs, the defendants who were the lessees and who were cultivating the lands an a waram basis are bound to pay the waram for the lands and cash rent for the coconut tope and they having failed to pay the same after the date on which the above Act was notified and as the defendants have no properties of their own it would be just and convenient to grant the only relief of appointment of a receiver who could be directed by the court to harvest and pay half of the produce to the plaintiffs as also the usual cash rent towards the use of the coconut topes.

3. The defendants through the 15th defendant claimed that the plaintiffs are not Iruwaramdars; but on the other hand, they are entitled to Kudiwaram right in the lands and they are in lawful possession of the suit properties in exercise of their right as kudiwaramdars and that the Government had collected the kist from them and so the plaintiffs are not even entitled to receive kudiwaram produce for the lands as also the rent for the tope. Effectively the defence is that a bare suit for the appointment of a receiver, which would impliedly oust the lawful possession of the defendants from the properties, is not maintainable and that the suit is barred by provisions of the Madras Act 30 of 1963.

4. On the above pleadings the following issues were framed:

1. Whether the suit as framed is maintainable ?

2. Whether the plaintiff is entitled to melwaram ?

3. Whether the suit is barred by Act 30 of 1963 ?

4. To what relief is the plaintiff entitled ?

Additional Issues:

Whether the plaintiff is entitled for the appointment of a receiver for the suit properties as prayed for in the plaint?

The court below held that the defendants are in actual possession of the suit lands and their possession is admittedly lawful. It also found that no receiver could be appointed on the only ground that the defendants are poor and they may not be able to pay all the arrears of rent in one lump sum. On the question of maintainability of the action, the court held that it was not maintainable and in its discretion expressed the view that as there was no complaint of acts of waste on the part of the defendants, it was neither just nor convenient to appoint a receiver. In the result the suit was dismissed. It is as against this, the present appeal has been filed.

5. Mr. Sundaram Iyer, learned counsel for the appellants, based on the analogy of a similar sister enactment viz., the Madras Estates (Abolition and Conversion into Ryotwari) Act, (Madras Act 26 of 1948) contends that the plaintif