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1980 DIGILAW 1279 (ALL)

Ikramunnisa etc. v. Board of Revenue

1980-12-24

T.S.MISRA

body1980
ORDER T.S. Misra, J. - These writ petitions directed against the order of the Board of Revenue dated 28-11-1978 arise in the following circumstances : The opposite party No. 2 filed a suit for declaration that he is co-sharer of th share in the property mentioned in Schedule 'A' and share in the property mentioned in Schedule 'B' attached to the plaint. The instant petitioner was impleaded as defendant No. 4 in the suit. The petitioner had also claimed relief in respect of Khata No. 292 of village Kasmandi Kalan, tahsil Malihabad, district Lucknow, claiming half share therein. An application was moved for appointment of a senior counsel as receiver of the property in dispute and for injunction that the defendant No. 1 Mohsinuzzaman may be restrained from selling the disputed plots. The trial court passed an ex parte interim order appointing a receiver. The petitioner filed an objection against the appointment of receiver and prayed that the order be recalled. The trial court, however, did not set aside the order for appointment of the receiver. An appeal was thereupon preferred before the Commissioner which came up for hearing before the Additional Commissioner. That appeal was party allowed. The plaintiff then filed a revision against the order of the Additional Commissioner. Another revision was also filed by Mohsinuzzaman opposite party No. 3. The Board of Revenue partly allowed the revision by an order dated 28-11-1978 contained in Annexure-8 to the writ petition. The petitioner has impugned the said order of the Board of Revenue in this petition filed under Article 226 of the Constitution. 2. The learned counsel for the petitioner stated at the time of the hearing of the petition that the petitioner was challenging the order of the Board of Revenue so far as it related to the appointment of the receiver over plots Nos. 1280/2 and 1499. These plots were said to be standing in the name of the petitioner Smt. Ikramunnisa and her grievance is that no case was made out for appointment of the receiver with respect to the property belonging to her. She maintains that she is in exclusive possession of the said plots and is paying land revenue for the same. The petition has been opposed. 3. I have heard the learned counsel for the parties at great length and have gone through the record. She maintains that she is in exclusive possession of the said plots and is paying land revenue for the same. The petition has been opposed. 3. I have heard the learned counsel for the parties at great length and have gone through the record. It was contended on behalf of the petitioner that there was no averment or allegation in the receivership application that the petitioner was destroying the property or that the disputed property was being wasted, hence the Board of Revenue fell in error in appointing the receiver. I find no merits in this contention. A copy of the application for appointment of the receiver is Annexure-2 to the writ petition. It was moved under Sec. 229-D of the U.P. Zamindari Abolition and Land Reforms Act. The plaintiff alleged that he is co-tenant in plots detailed in Schedules 'A' and 'B' filed along with the plaint and plots contained in Khata No. 290 situate in village Kasmandi Kalan, pargana and tahsil, Malihabad, district Lucknow. Out of the said plots mostly plot Nos. 1280/2 and 1499 were mango groves. The defendant No. 1 denied the title and claim of the plaintiff. In paragraph 6 of that application it was stated that as the mango crop of the said groves was likely to be damaged and wasted a receiver should be appointed. In paragraph 7 it was stated that be defendant No. 1 was threatening to sell the mango crop and the standing crop immediately and was further threatening to dispose of the lands even and in case he succeeded in his designs, the applicant would have to face a lot of complications and unbearable loss and the plaintiff-applicant would be ruined. In view of these allegations it is incorrect to say that there was no averment in the application for appointment of the receiver that the property in dispute was being wasted or it was being threatened to be wasted and damaged. The suit was filed under the provisions of Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. In view of these allegations it is incorrect to say that there was no averment in the application for appointment of the receiver that the property in dispute was being wasted or it was being threatened to be wasted and damaged. The suit was filed under the provisions of Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act. Section 229-D of the said Act provides that if in the course of a suit under the provisions of Sections 229-B and 229-D, it is proved by an affidavit or otherwise that any property, trees or crops standing on the land in dispute is in danger of being wasted, damaged or alienated by any party to the suit or that any party to the suit threatens or intends to remove or dispose of the said property, trees or crops in order to defeat the ends of justice, the court may grant a temporary injunction and, where necessary, also appoint a receiver. The plaintiff as pointed out earlier had alleged that the groves in question, the trees and its crops were in danger of being wasted or alienated and that the defendant No. 1 has threatened to dispose of the crop and the grove. The Board of Revenue was therefore correct in observing that there was no jurisdictional error in the order of the trial court and that the trial court had applied its mind to the affidavit filed before it and had reason to come to the conclusion that the appointment of receiver was necessary. The Board of Revenue further observed that all the plots recorded in the name of Saidul Hasan exclusively or as co-owner in the old record, were in dispute and the trial court was satisfied that a dispute existed. The Additional Commissioner was wrong in limiting the scope of the dispute in the matter of, appointment of a receiver to only four plots. The suit was for declaration and partition and in such suits no prior presumption could be made while passing an order for the appointment of a receiver that certain plots did not belong to the plaintiff while others did. No error of law apparent on the face of the record leading to failure of justice can, therefore, be said to have been established. No error of law apparent on the face of the record leading to failure of justice can, therefore, be said to have been established. True, it is that the appointment of a receiver is, as a general rule, discretionary, and not a matter of right and a court will make an appointment of a receiver with great caution and circumspection. A receiver may be appointed where the court is satisfied that it is necessary to do so to prevent fraud, to protect and preserve the property against an imminent danger of loss or diminution in value, destruction, squandering, wastage or removal (See AIR 1978 All 189 ). Not only must the plaintiff show a case of adverse and conflicting claims to property, but be must, sow some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. Tested in the light of these principles the order of the Board of Revenue cannot be said to be wrong. The petitions, therefore, lack merits and are liable to be dismissed. 4. In the result, Writ Petition No. 796 of 1979 (Smt. Ikramunnisa v. Board of Revenue and others) fails and is accordingly dismissed. But in the circumstances of the case the parties shall bear their own costs. 5. For the reasons in the foregoing Writ Petition No. 1138 of 1979 (Mohsinuzzaman v. Board of Revenue and others) is also dismissed with costs.