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2007 DIGILAW 391 (PAT)

Dinesh Kumar Gupta v. Deobrat Lal

2007-02-21

SYED MD.MAHFOOZ ALAM

body2007
Judgment Syed Md.Mahfooz Alam, J. 1. This Miscellaneous Appeal has been preferred against the order dated 15.3.97 passed in Title Suit No. 1 of 1992 by Sri B.K. Sinha, Sub-Judge 1st, Khagaria, whereby he has been pleased to reject the application of the plaintiffs-appellants filed under Order 40, Rule 1 of the Code of Civil Procedure. 2. The brief facts of the case is that the plaintiffs-appellants brought Title (Partition) Suit No. 1 of 1992 for partition of his 1/6th share in the suit property. During the pendency of the suit, he filed an application under Order 40 Rule 1 of the Code of Civil Procedure on 19.8.96 for appointment of Receiver in respect of the suit properties described in Schedule-II, IIA to HE on the ground that the suit properties are in danger of being misused and misappropriated by the defendants and, therefore, for proper management of the suit property the appointment of Receiver is essential. Learned Sub-Ordinate Judge after hearing the lawyers of both the parties passed the impugned order on the petition of the plaintiffs-appellants filed under Order 40 Rule 1 of the Code of Civil Procedure and by a detailed order dismissed the application and rejected the prayer of the plaintiffs-appellants for appointment of Receiver. 3. It has been argued by the learned Advocate of the appellants that in view of the observation of the learned Sub-Ordinate Judge that "ex facie the family properties at the hands of the parties are in the state of hochpoch and in such a situation it can be safely concluded at this stage that the plaintiffs have a debatable case for the purpose of partition" the learned Sub-Ordinate Judge should have allowed the prayer of the plaintiffs for appointment of Receiver for better management of the properties. Learned Advocate of the appellants further argued that the plaintiffs-appellants has filed this suit for partition of the joint family property on the ground that the properties are still joint and the learned Sub-Ordinate Judge in his order has doubted the claim of the defendants regarding partition of the family property by observing that "two memorandum of partition produced on behalf of the plaintiffs and one memorandum of partition dated 21.10.81 produced on behalf of the defendants are inconsistent with each other on material particulars of the proportion purported to have been allotted to one or the other co-sharers". Learned Advocate submitted that in view of the above two observations the learned Sub-Ordinate Judge should have allowed the prayer of the plaintiffs for appointment of Receiver. 4. On the other hand, the argument of the learned Advocate of the respondents is that the plaintiffs by filing two memorandum of partition before the court below has accepted that the suit properties had already been partitioned and, as such, the learned Sub-Ordinate Judge has rightly rejected the prayer of the plaintiffsappellants for appointment of Receiver. 5. I have gone through the order of the learned Sub-Ordinate Judge. At para 9 of his order the learned Sub-Ordinate Judge has observed like this: "The defendants have raised the plea of pre-partition between the parties inter se having taken place on 21.10.81 and, for that matter, it is stated that a memorandum of partition in 6 copies was also created as an evidence of partition of the family properties. The plaintiffs have placed on the record two sets of memorandum of partition purported to have been created in between the parties on 2.3.81 and 21.10.81. I have also taken note of the fact that the defendants have also placed on the record a photo copy of a memorandum of partition dated 21.10.81" 6. From the above observation of the learned Sub-Ordinate Judge it is clear that from both the sides documents of partition were produced. It is a different matter that the three memorandum of partition are inconsistent with each other but the same definitely supports the contention of the defendants that the partition of family properties had already taken place. Under such circumstances, prayer of the plaintiffs for appointment of Receiver with respect to the suit property can not be allowed unless it is established that the said partition was never acted upon. I am, therefore, of the view that the learned Sub-Ordinate Judge has rightly rejected the prayer of the plaintiffs-appellants for appointment of Receiver. 7. In the result, I do not find any merit in this appeal and, as such, the same is hereby dismissed with observation that the Sub-Ordinate Judge must dispose of the suit within six months from the date of receipt/production of a copy of this order as the suit has become fifteen years old.