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2005 DIGILAW 972 (PAT)

Dadan Tiwary v. Ramji Tiwary

2005-11-10

M.L.VISA

body2005
Judgment 1. With the consent of the parties this appeal was heard for its final disposal when it was listed under the heading for hearing under Order XLI Rule 11 of the Code of Civil Procedure along with IA No. 4204 of 2003. 2. The appellant Dadan Tiwary has filed this appeal against the order dated 29.7.2003 passed by Subordinate Judge-IX, Sasaram, in TS No. 127/01 rejecting the prayer of appellant to appoint a receiver. 3. Brief facts of the case are that appellant Dadan Tiwary filed TS No. 127/01 against the respondents who are his brothers and nephews and his mother Manikraj Devi claiming his 1/4th share in the suit properties situate at Mauza Surajpura and Barun within Dawat PS mentioned in schedule kha as well as properties described in Schedule-Ka of the plaint. His case is that the suit property is joint family property. Manikraj Devi had also filed Title Suit No. 398/2000 stating therein that the property described in Schedule-I of her plaint which is the property described in Schedule - Ka of the plaint of appellant Dadan Tiwary except Plot No. 1187/512 of khata No. 78/31 measuring 9.5 decimals was purchased by her with her own money which she from time to time used to receive from her naiher and she got a house constructed on it and the house was let out on rent and from the earning of house rent she got another house constructed the details of which are given in Schedule A and B of plaint. About her husband, her case was that he died on 26.1.1991 leaving her joint with respondent Nos. 1 and 2 and at that time appellant was separate in business and mess from his father and after the death of father of appellant, she and respondent Nos. 1 and 2 as legal representatives inherited the properties left by her husband. About the property described in Schedule-I of the plaint, her further case was that by a family arrangement in the year 1999 it was partitioned and a part of it which is described in Schedule A was allotted to the share of respondent No. 1 Ramji Tiwary and with his consent it was allotted in the name of his wife and his two sons who are respondent Nos. 4 and 5 and another part which is described in Schedule B of plaint was allotted to respondent No. 2 and with his consent it was allotted to his wife. Her further case was that as per partition in family arrangement, respondents came in possession of their shares and they got their names mutated and they have been paying rent of their shares and her husband in family arrangement document dated 5.9.1976 had admitted that she had acquired property with her stridhan. She further stated that when she purchased the property of Schedule -1 of her plaint, at that time the appellant was of tender age and had no source of income and she out of love and affection purchased some land in his name also and her husband had established the appellant in business by spending huge money and purchasing a house at Mauza--Digha, Patna, in the name of appellant. She filed suit for confirmation of partition of properties described in Schedule I of the plaint. 4. Appellant filed a petition for appointment of a receiver and after hearing the parties his prayer was rejected against which he has come up before this Court in the present appeal. Appellant has also filed IA No. 4204/03 making prayer for direction to respondents to pay/give/divide his share out of the amount realised by rent for Dalmianagar house described in Schedule Ka of the plaint. In this application he has stated that respondents No. 1 and 2 who are his brothers by putting pressure on their father got an unregistered deed of family arrangement surreptitiously without his any knowledge and although they in that arrangement stated that the/properties were ancestral and three brothers including appellant and respondents No. 1 and 2 had got equal shares but no allotment under the deed specifying the properties was made and they further in the year 1999 prevailing on their mother got other unregistered deed executed as Yadasf without this knowledge and thereby got the house of Sidhauli (Dalmia Nagar) in their as well as in their wives names and they further prevailing on their mother with dishonest motive got Title Suit No. 370/2000 filed to get the alleged unregistered deed of Yadast of 1999 confirmed and thereby deprived the appellant from his share in Sidhauli house. His further case is that in the deed of family arrangement executed by his father late Ganesh Dutt Tiwary it is manifest that all properties of Surajpura and Barun are joint in which they have been given equal shares but in the alleged deed of 1999 there is no whisper of Surajpura and Barun properties and despite the properties of Surajpura and Barun are joint ancestral property and appellant has equal share yet respondent Nos. 1 and 2 clandestinely got their names mutated and they are misappropriating all produce, income etc. and since his mother Manakraj Devi died leaving him and respondents No. 1 and 2 as heirs, so in any view of the matter the appellant has right and is entitled to equal share in all properties and action of respondents in getting their names mutated in respect of ancestral properties of Surajpura and Barun as well as Sidhauli and their attempt to grab the house of Sidhauli apart from usufruct of Surajpura and Barun properties and rent etc. of Sidhauli (Dalmia Nagar) house compelled the appellant to file a petition for appointment of receiver. 5. Admittedly, the appellant filed Title Suit against his brothers claiming his share in the property which, according to him, is joint family property. On the other hand, his mother had also filed title suit seeking relief of confirmation of partition already effected between her sons by family arrangement. Both the suits have been ordered to be decided anologus with the consent of parties as it appears from the impugned order. 6. The case of respondents is that appellant had already separated long back and was doing his own business. The written statement filed on behalf of the appellant in Title Suit No. 398/2000 which has been annexed with the memorandum of appeal shows that the appellant in Para 13 of his written statement has admitted that he has his separate business and income and in course of business he used to reside out side the village. In last part of para-14 of written statement he has admitted that he used to pay income tax on the income earned by his individual business since 1963-64. In last part of para-14 of written statement he has admitted that he used to pay income tax on the income earned by his individual business since 1963-64. As per the plaint of Title Suit No. 398/2000 which is also a part of annexures of memorandum of this appeal, the date of death of father of appellant is given as 26.1 .1991 which has not been denied by the appellant Since then, even if for the sake of argument it is assumed that property is joint, it is being managed by the respondents. For the appointment of receiver wastage, damage and alienation of property are matters which require consideration. Except vague allegation made in IA No. 4204/03 that respondents are attempting to grab the house of Sidhauli apart from misappropriating the entire usufructs of Surajpura and Barun and rent of Sidhauli property, nothing has been brought on record to prove these allegations and to show that what irreparable loss would be caused to appellant if his prayer for appointment of receiver is not allowed. Admittedly, the suit filed by the appellant is a partition suit. In absence of anything on record to show that there is wastage of or any damage to the suit property or there are chances of its alienation, I do not find any merit in the prayer of appellant. 7. In the result, this appeal along with IA No. 4204/03 stands dismissed.