ORDER :- The civil revision petition had arisen out of O.S. No. 842 of 1982 on the file of the Munsiff Court, Neyyattinkara. The suit for injunction was filed by the first respondent against the second respondent who is his father's brother's son. The suit property is the one allotted to his share as per the partition decree in O.S. No. 1033 of 1969. On the application of the first respondent a receiver was appointed to take possession of the property. At that time the petitioner filed I.A. No. 3963 of 1984 under O.40, R.1(2). The Munsiff dismissed the application by order dt. 22-8-1984. Against that she filed C.R.P. No. 2150 of 1984. The order was set aside and the matter was remanded. The petition was again dismissed by the Munsiff by order dt. 7-3-1987. The present revision was filed by her against that order. 2. Revision petitioner is the daughter of one of the brothers of the plaintiff. That brother was the second defendant in O.S. No. 1033 of 1969 (Partition Suit). The present plaintiff was the plaintiff in that suit also. By the preliminary decree passed in that case on 31-10-1973 plaintiff was given 1/3rd share. Fifth defendant in that case filed A.S. No. 111/1975 against the preliminary decree. During the pendency of the appeal the plaintiff filed a final decree application in that case. When A.S. No. 111 of 1975 was pending, father of the revision petitioner died. Revision petitioner was one of the legal representatives impleaded in the appeal. She was the 8th respondent. Ultimately the appeal was dismissed on 30-9-1977. 3. Thereafter in the final decree application the mother and brother of the present revision petitioner got themselves impleaded in 1978. Copy of the application for impleadment is Ext. B4. Revision petitioner did not apply for impleadment in the final decree application and the plaintiff also did not apply to implead her. That seems to be on account of the fact that even before Ext. B4 her mother executed Ext. B3 gift deed in her favour. By Ext. B3 portions of the mother's property and portions of the property due to the father in that partition suit were given to the present revision petitioner. 4. Ext. A1 final decree in O.S. No. 1033 of 1969 was on 12-10-1979. Plaint schedule property is the item allotted to the present plaintiff as per that decree. By Ext. B3 portions of the mother's property and portions of the property due to the father in that partition suit were given to the present revision petitioner. 4. Ext. A1 final decree in O.S. No. 1033 of 1969 was on 12-10-1979. Plaint schedule property is the item allotted to the present plaintiff as per that decree. The share of revision petitioner's father was allotted to her mother and brother who got themselves impleaded in that case. Present plaintiff got delivery of the share allotted to him on 19-4-1980. Ext. B2 is copy of the delivery list. 5. First respondent (plaintiff) is residing at Trivandrum and the property is at Neyyattinkara. Second respondent is having the adjacent property allotted as per the same partition decree. The suit was filed on the allegation that he is attempting to trespass upon the property. There was an application for injunction. Interim injunction was made absolute by order dt. 10-3-1983. It was thereafter that the first respondent applied for the appointment of a receiver on the ground that in his absence at Trivendrum second respondent is committing waste in the property. A receiver was appointed. The receiver went to take possession of the property on 21-8-1983. At that time 3 advocates presented I.A. No. 3898 of 1983 and copy of the plaint in O.S. No. 301 of 1983 to him. On 30-8-1983 the receiver reported that he was not able to take possession. It was in this background that the present revision petitioner filed I.A. No. 3963 of 1984. In this connection it has also to be remembered that O.S. No. 301 of 1983 is the suit filed by the revision petitioner for cancellation of the preliminary decree in O.S. No. 1033 of 1969. The case of the first respondent is that the revision petitioner is only a puppet in hands of the second respondent. There are indications to show that this contention cannot be quite baseless. At any rate, the revision petitioner is not an utter stranger to and proceedings. As I have earlier stated, she was a party to A.S. No. 111 of 1975. Evidently she did not get herself impleaded in the final decree proceedings not because she was unaware of it. She kept quiet presumably on account of Ext. B3 gift deed by which her rights were secured. Though the revision petitioner says that Ext. As I have earlier stated, she was a party to A.S. No. 111 of 1975. Evidently she did not get herself impleaded in the final decree proceedings not because she was unaware of it. She kept quiet presumably on account of Ext. B3 gift deed by which her rights were secured. Though the revision petitioner says that Ext. B3 is not a genuine document which has not taken effect, I do not think that it is easy to swallow such as contention. Otherwise it is difficult to understand why she kept quiet for such a long period after the final decree and delivery. 6. The plaint property was allotted to the share of the first respondent by the partition decree to which the present revision petitioner was not an utter stranger though she was not a party in the final decree proceedings. First respondent got delivery on 18-4-1980 and thereafter the only person who contested his right till 1984, when the petitioner appeared in the scene, was the second respondent. There is every reason to presume that appearance of the petitioner was at the behest of the second respondent. I have said so only because O.40, R.1 empowers the Court to remove any person from possession of property in respect of which a receiver has been appointed. The only case in which the receiver's possession can be resisted is that provided by sub-rule (2) according to which the Court has no power to deprive a third person of the possession of any property when no party to the suit has a present right to do so. When such a third person in possession of the property in respect of which a receiver has been appointed objects to deliver possession to the receiver the Court must hold an enquiry into his claim with a view to ascertain if he was under a present liability to be removed from the possession of the property. First of all he must have been in possession of the property and the result of the appointment of receiver must be to dispossess him. His possession must have been as a third person which means that his possession must have been independent. The provision is intended to safeguard the interest of third parties who are in possession and entitled to be in possession independent of the parties to the suit who have no right to dispossess him. His possession must have been as a third person which means that his possession must have been independent. The provision is intended to safeguard the interest of third parties who are in possession and entitled to be in possession independent of the parties to the suit who have no right to dispossess him. The object behind the provision is that such persons who had no opportunity of defending their independent right to possession should not be dispossessed without being heard. Therefore it is essential that the revision petitioner is an utter stranger to the litigation having independent possession of the property without reference to the parties. 7. Revision petitioner cannot be said to he an utter stranger to the litigation. There is nothing to show that she had independent possession much less possession. Even if she could have had any possession it could only be after the death of her father. That could only be along with the other heirs of the father. The other heirs were parties to the final decree and they are happy with the allotment. Petitioner had also the advantage of a document in her favour. Though she was aware of the suit she challenged the final decree only in 1983. The Court delivery in favour of the first respondent is prima facie proof of the fact that revision petitioner did not have possession or right to possession. She may or may not have a right to get the decree set aside in O.S. 301 of 1983. As matters now stand there is a final decree by which plaint schedule property does not cover the share that was legitimately due to her father. The fact that all long the contest was between respondents 1 and 2 prima facie shows that revision petitioner is a new comer to the dispute. Her possession much less independent possession is a matter in serious dispute. Therefore I am of opinion that she cannot claim herself to be a third person in possession who is not liable to be dispossessed by any of the parties to the suit. 8. The enquiry under O.40, R.1(2) is of a summary nature. The earlier view as reflected by the decision in Venkapa Bhatta v. Inthra Crasta, 1973 Ker LT 1037 was that an order under O.40, R.1(2) is final and not liable to be questioned in a fresh suit. 8. The enquiry under O.40, R.1(2) is of a summary nature. The earlier view as reflected by the decision in Venkapa Bhatta v. Inthra Crasta, 1973 Ker LT 1037 was that an order under O.40, R.1(2) is final and not liable to be questioned in a fresh suit. Now the position is that the remedies are not alternative and inconsistent. Even after getting defeated in a summary enquiry under O.40, R.1(2) the defeated party could have his remedy in a detailed enquiry in a separate suit. The decision in the enquiry under O.40, R.1(2) is no bar to that suit. The summary enquiry under 0.40, R.1(2) is only to ascertain if the third party in possession is liable to be removed from present possession by the receiver. Such a person is equally having the right to institute a fresh suit with the receiver on the array of parties after obtaining leave of the Court which appointed the receiver. These are two independent remedies. One will not exclude the other. No question of option or election is involved. Failure in an application under O.40, R.1(2) will not be a bar to the establishment of his right in the separate suit. Principle of res judicata is not involved. It was so held in Raghavan Nair v. Appu Kidavu, 1979 Ker LT 458 : (AIR 1980 Ker 4) overruling 1973 Ker LT 1037. Revision petitioner has already filed a suit to avoid the partition decree and that is pending trial. Her right is only to have her share from what would have been due to her father even if she is found entitled to reopen the decree. Any how there is nothing to establish that she has a right to come under O.40, R.1(2). 9. The revision petition fails and it is hereby dismissed without any order as to costs. Petition dismissed.