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2008 DIGILAW 306 (PAT)

Rama Kant Sinha v. Vishnu Kant Sinha

2008-02-12

body2008
ORDER Heard learned counsel for the petitioner and learned counsel for opposite party no.1. No one appears for the remaining opposite parties although notices were sent and validly served upon them. 2. This civil revision has been filed by defendant-petitioner challenging order dated 7.1.2005 by which the learned Subordinate Judge 2, Buxar, directed the receiver appointed by order dated 09.04.2003 to exercise his jurisdiction over five and half kathas of land in Title Suit No. 214 of 1994. 3. The aforesaid title suit was filed by plaintiff-opposite party no.1 against his brothers Ramakant Sinha (defendant no.1-petitioner) and Anand Mohan Sinha (defendant no. 2, now deceased, predecessor of opposite parties no. 2 to 4) for partition of the suit properties. From a plain reading of the plaint (annexure-1) it is quite apparent that the plaintiff had specifically claimed that Plot no. 3295 (new Plot No. 724) appertaining to Khata no. 124 (new Khata no. 238) situated within Buxar Municipality in the district of Buxar measured seven kathas out of which the mother of the parties, namely Sita Devi, wife of Basith Lal executed a registered deed of gift in favour of her daughter-in-law Kamla Devi, wife of Bishnukant Sinha (plaintiff) with respect to one and half katha thereof. Hence, the plaintiff claimed partition of only five and half kathas of the said land detailed in Schedule II of the plaint. 4. It appears that defendant no.1-petitioner appeared in the suit and filed a written statement claiming that his mother had not executed any sale deed and that she also had no right to execute such sale deed. It transpires that subsequently the defendants filed an application dated 1.7.1997 in the learned court below for appointment of the receiver and after considering the same in detail the learned court below by order dated 9.4.2003 (annexure-2) appointed Mr. Subedar Pandey, Advocate, Buxar, as receiver of the suit properties. Learned counsel for the petitioner submits that subsequently only on the basis of the oral submissions of learned counsel for the plaintiff, the learned court below modified the aforesaid order dated 9.4.2003 and passed the impugned order dated 7.1.2005 restricting the receiver to only five and half kathas of the suit land. 5. Learned counsel for the petitioner submits that subsequently only on the basis of the oral submissions of learned counsel for the plaintiff, the learned court below modified the aforesaid order dated 9.4.2003 and passed the impugned order dated 7.1.2005 restricting the receiver to only five and half kathas of the suit land. 5. From the averments made by learned counsel for the parties and the materials on record, including the impugned order, it is quite apparent that the suit land measures only five and half kathas as detailed in Schedule II of the plaint and the relief has been sought by the plaintiff only with respect to the said five and half kathas of land. Hence, order dated 9.4.2003 by which the receiver was appointed was clearly with respect to the land in suit which is obviously Schedule II of the plaint and not Schedule I of the plaint. In the said circumstances, by the impugned order the learned court below has not modified the earlier order rather it has only explained and clarified the same due to difficulties faced by the Pleader Commissioner in discharging his duties as a receiver. 6. Although in paragraphs 14-16 of the written statement defendant no.1-petitioner had made both submissions, namely that the said Sita Devi had not executed deed of gift and that she had no right to execute such deed of gift, but the said deed of gift has not been challenged by the defendants as a relief either in the instant suit as a counter claim or in a separate suit. In the said circumstances, the entire seven kathas of land detailed in Schedule I of the plaint cannot be said to be the suit land and the learned court below was quite justified in observing that the suit land is only five and half kathas detailed in Schedule II of the plaint. 7. In the aforesaid facts and circumstances, I do not find any illegality in the impugned order and accordingly this civil revision is dismissed.