Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 411 (MP)

ISHWAR DAYAL v. MOHAN SINGH

2010-04-08

A.M.NAIK

body2010
Judgment Abhay M.Naik, J. ( 1. ) -This judgment disposes of S.A.No.86/2001 and S.A.No.38/2001 since both the appeals arise out of the common judgment and decree dated 21.11.2000 passed by the Court of Additional District Judge, Lahar, District Bhind in Civil Appeal No.24/97. ( 2. ) There situated a land bearing survey Nos. 1472, 1480, 1486, 1482, 1811, in total area of 3.354 hect. in village Devri Kalan, Tahsil Lahar, District Bhind, which belonged to Sughar Singh, father of plaintiff No. 1 and husband of plaintiff No.2. After the death of Sughar Singh in 1968, said land devolved upon the plaintiffs being son and widow of the deceased. They continued to occupy the said land as Bhumiswami upto year 1970. Original defendant No.1, namely - Seel Dulaiya submitted an application under Section 145 of Cr.P.C. before the Sub Divisional Magistrate, Lahar, which was registered at Misc. Criminal Case No. 106/70. Seel Dulaiya wrongly asserted possession over the said land for more than 12 years. It was stated in the application that on 5.7.1970, plaintiffs Mohan Singh and Mst.Gendarani alias Parvati tried to forcibly occupy the suit land. As it was found that there was apprehension of dispute, consequently, an attachment order was passed on 21.7.1970 and the suit land was handed over to original defendant No.3, namely - Ishwar Dayal Patel on the same date as Supurdagidar. Application under Section 145 of Cr.P.C. was dismissed in default of appearance, however, S.D.M. Lahar did not direct in specific for release of the suit land from attachment. On 3.12.1975, plaintiffs submitted an application before S.D.M. for restoration of possession of the suit land. They also prayed that crops harvested by the Supurdagidar may also be handed over to the plaintiffs. In response to this application, defendant No. 1 (Seel Dulaiya) submitted the reply that she had already received possession of the disputed land on 23.3.1974 and is also in receipt of accounts for the intervening period from Ishwar Dayal. Identical reply was also submitted by Ishwar Dayal. Plaintiffs insisted that at the time of Supurdagi, possession was obtained from the plaintiffs, therefore, the same is liable to be restored to them. S.D.M. Lahar, vide his order dt.19.2.1979 found that there was no evidence on record to ascertain any specific party from whom the possession of the suit land was obtained at the time of attachment. Plaintiffs insisted that at the time of Supurdagi, possession was obtained from the plaintiffs, therefore, the same is liable to be restored to them. S.D.M. Lahar, vide his order dt.19.2.1979 found that there was no evidence on record to ascertain any specific party from whom the possession of the suit land was obtained at the time of attachment. This being so, plaintiffs were directed to approach Civil Court, however, it was also equally found that Ishwar Dayal had committed criminal breach of trust and was liable to be prosecuted. Criminal Revision bearing No. 14/79 was submitted before the Sessions Judge, who vide his order dt. 14.7.1980 quashed the order of prosecution. Aggrieved by the aforesaid, Misc. Criminal Case Nos.759/80 and 812/80 were submitted, which were dismissed by this Court. ( 3. ) With the aforesaid pleadings, plaintiffs instituted civil suit for declaration of title, restoration of possession and mesne profits against Seel Dulaiya, Kamta Prasad and Ishwar Dayal. ( 4. ) Seel Dulaiya, the original defendant No. 1, submitted her written statement refuting thereby the claim of the plaintiffs. She inter alia stated that the suit land was wrongly recorded in the name of the plaintiffs. The same was occupied by her and, therefore, the application for mutation in her favour was rightly submitted. Suit land was attached in proceedings under Section 145 of Cr.P.C. by virtue of the order of S.D.M. Lahar. Possession of the same was obtained from her at the time of attachment and therefore she has received it back alongwith mesne profits from Ishwar Dayal on dismissal of application under Section 145 of Cr.P.C. Plaintiffs or Sughar Singh were neither Bhumiswami nor in possession of the suit land. Ishwar Dayal, the defendant No.3, submitted his written statement. He inter alia pleaded that after dismissal of the proceeding under Section 145 of Cr.P.C, he handed over back the possession of the suit land to defendant No. 1 on 23.3.1974. He has also deposited the mesne profits with accounts with defendant No.1. He has not committed any kind of breach and is not liable to plaintiffs in any manner, whatsoever. He denied that he is liable to pay mesne profits as claimed by the plaintiffs. ( 5. ) During pendency of the suit, Kamta Prasad, original defendant No.2, died and his son namely - Rajaram was brought on record as defendant No.2. He has not committed any kind of breach and is not liable to plaintiffs in any manner, whatsoever. He denied that he is liable to pay mesne profits as claimed by the plaintiffs. ( 5. ) During pendency of the suit, Kamta Prasad, original defendant No.2, died and his son namely - Rajaram was brought on record as defendant No.2. Likewise, Malti Bai was also brought on record as daughter of plaintiff No.2 on account of death of latter. Defendant No.1, namely - Seel Dulaiya also died, which was reported to the trial court vide application dt. 19.7.1989. Since the plaintiffs were the legal representatives of Seel Dulaiya, the prayer was made for deletion of her name from the cause title. Consequently, application was allowed and name of Seel Dulaiya was deleted from the cause title. ( 6. ) Learned trial Judge vide judgment and decree dated 7.10.1997 found that plaintiffs are Bhumiswami of the suit land and they were entitled to its possession, however, the relief against Supurdagidar was denied. ( 7. ) Aggrieved by the aforesaid, Civil Appeal No.24/97 was preferred by the plaintiffs, whereas Civil Appeal No.25/97 was preferred by Rajaram, defendant No.2, which was dismissed for want of substance. Civil Appeal No.24/97 was partly allowed. Plaintiffs in addition to restoration of possession are found entitled to damages to the tune of Rs.40,000/- on payment of court fees. ( 8. ) Aggrieved by the aforesaid, Ishwar Dayal (original defendant No.3) has preferred S.A.No.86/01, whereas plaintiffs Mohan Singh and Smt.Malti Bai have submitted S.A.No.38/01. It is informed during arguments by Shri K.S.Shrivastava, learned counsel that Rajaram had preferred S.A.No. 106/01, which has already been dismissed in default of appearance. ( 9. ) S.A.No.86/2001 is heard on the following substantial questions of law :- "1. Whether the plaintiffs being successors and heirs of late Sheel Dulyia are bound by the admission made by her regarding receipt of profit and possession from the appellant ? 2. Whether the findings of the learned First Appellate Court are perverse, illegal and unsustainable ?" Likewise, S.A.No.38/2001 is heard on the following substantial questions of law :- " 1. Whether the courts below are justified in directing payment of court fee on the ground of mesne profit to be collected and for the purpose of auction by the S.D.O. ? 2. Whether the courts below are justified in directing payment of court fee on the ground of mesne profit to be collected and for the purpose of auction by the S.D.O. ? 2. Whether the learned First Appellate Court has correctly decided the rate of mesne profit in accordance with the evidence available on record ?" ( 10. ) Shri R.S.Rathore and Shri K.S.Shrivastava, learned counsel for the parties made their respective submissions. ( 11. ) It has been contended by Shri Rathore that Receiver had handed over possession to Seel Dulaiya after dismissal of application under Section 145 of Cr.P.C., which was admitted by Seel Dulaiya in her written statement. Similarly, the money earned by way of income from the disputed property by the Receiver was also handed over to Seel Dulaiya, as was admitted by her, in her written statement. Plaintiffs are legal heirs of Seel Dulaiya and are bound by her admissions. This being so, it has been contended that the plaintiffs are, thus, in receipt of possession as well as mesne profits through Seel Dulaiya and no decree can be legally granted for the same in favour of plaintiffs. ( 12. ) Admissions, as per provisions of the Indian Evidence Act, 1872, are statements by the persons, if they are made during the continuance of the interest of the persons making the statements. In the instant case, plaintiffs stated that they alone are Bhumiswami and Seel Dulaiya had no right, title or interest in the suit land. It has also been found by the courts below that the plaintiffs alone were the Bhumiswami and Seel Dulaiya had no title to it. Thus, the statement about receipt of possession and mesne profits does not amount to admissions for the purpose of binding the plaintiffs. Moreover, plaintiffs sued with the specific avermrents that they alone were Bhumiswami of the suit land and Seel Dulaiya had encroached upon it without right, title or interest. They instituted the suit on the basis of their own rights. They did not claim through Seel Dulaiya. Therefore, name of Seel Dulaiya was sought to be deleted. Their prayer was accepted and Seel Dulaiyas name was omitted from the cause title. Plaintiffs did not step into shoes of Seel Dulaiya. They did not claim title through Seel Dulaiya. They instituted the suit on the basis of their own rights. They did not claim through Seel Dulaiya. Therefore, name of Seel Dulaiya was sought to be deleted. Their prayer was accepted and Seel Dulaiyas name was omitted from the cause title. Plaintiffs did not step into shoes of Seel Dulaiya. They did not claim title through Seel Dulaiya. They were specific on this issue that they alone were Bhumiswami and Seel Dulaiya without any right forcibly occupied the suit land. ( 13. ) Courts below have concurrently found that plaintiffs being the sole Bhumiswami were entitled to possession. Thus, they did not claim through Seel Dulaiya and the statement of Seel Dulaiya contained in written statement acknowledging the receipt of possession and mesne profits from the Receiver Ishwar Dayal obviously did not bind them. There is no specific admission of plaintiffs that Seel Dulaiya did receive mesne profits from the Receiver and the plaintiffs did receive the same from Seel Dulaiya on her death. Moreover, it may be seen that Receiver was not directed either by the SDM or by the Civil Court to hand over possession and mesne profits to Seel Dulaiya. Alleged act of the Receiver of handing over the mesne profits to Seel Dulaiya was obviously not an authorised act. Neither under the order of supurdagi nor under any other order, the Receiver was directed to hand over it to Seel Dulaiya. This being so, accountability of the Receiver vis a vis the plaintiffs in respect of mesne profits did not cease merely by virtue of the statement of Seel Dulaiya contained in the written statement about receipt of mesne profits from the Receiver. ( 14. ) In the proceedings under Section 145, the SDM is well empowered to appoint Supurdagidar/Receiver for preservation of the property for the benefit of the person, who is found in possession on the date of initiation of the proceeding or within a period of two months preceding such initiation. Such appointment may be made by the Court on an application of an interested party or even suo motu. Such appointment may be made by the Court on an application of an interested party or even suo motu. Nagpur High Court (predecessor of this Court) in the case of Ganpat Pralhad v. Pralhad Madhoba [A.I.R.(39) Nagpur 253], has clearly held :- "There is nothing in O.40, R.1 of the Code which limits the power of the Court to appoint a receiver only to cases in which an application is made to it by a party to the suit. Ordinarily, of course, a Court would act only when a party to the suit invokes its powers. But as the law allows it to act even suo motu, it is obvious that for preserving the suit property it can act also on the application of a person interested in the preservation of the property." The general ground on which a Court appoints a Receiver is ultimately in every case the protection or preservation of property for the benefit of persons who have an interest in it. ( 15. ) Proceeding under Section 145 Cr.P.C. was dismissed for want of prosecution. Supurdagidar was not discharged by the SDM by any specific order. There is no provision of law, including the Code of Civil Procedure, which prescribes for termination of the office of receivership. The law on the point was briefly summarized by the Apex Court long back in the case of Hiralal Patni v. Loonkaran Sethiya ( AIR 1962 SC 21 ) as follows :- "(1) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in the act on (2) If a receiver is appointed in a suit, without his tenure being expressly defined, he will continue to be receiver till he is discharged. (3) But, after the final disposal of the suit as between the parties to the litigation, the receivers functions are terminated, he would still be answerable to the court as its officer till he is finally discharged. (4) The court has ample power to continue the receiver even after the final decree if the exigencies of the case so require." Thus, in the instant case, Supurdagidar was neither discharged nor absolved from his liability to submit accounts. He was handed over the suit agricultural land in area 3.354 hectare, which definitely must have yielded crops. (4) The court has ample power to continue the receiver even after the final decree if the exigencies of the case so require." Thus, in the instant case, Supurdagidar was neither discharged nor absolved from his liability to submit accounts. He was handed over the suit agricultural land in area 3.354 hectare, which definitely must have yielded crops. Position and duties of a Receiver was explained by Patna High Court in the case of Bihari Singh v. Tipan Singh (AIR 1977 Patna 226), which were further relied upon by this Court in the case of Naresh Maravi v. C.Mudliyar [ 2004 (1) M.P.H.T. 109 ] as under :- "(i) The receiver comes in possession of a property as an officer of the Court by virtue of his appointment by the Court in that behalf. (ii) Such property is custodia legis concomitant with the appointment of the receiver. (iii) The dependence of a suit in a Trial Court, unless there be a specific order of the Court to the contrary, sanctions the continuance of a receiver to remain in possession of such property even after its disposal by the Trial Court until he is discharged. (iv) The liability of rendering accounts after the disposal of the suit in the Trial Court does not cease ipso jure. (V) The receiver being an officer of the Court and being in possession of the estate in a fiduciary capacity, the Trial Court has jurisdiction even after disposal of the suit to " compel him to submit accounts of his dealings with the estate." ( 16. ) It has been contended by Shri Rathore, that the S.D.M., who appointed the Supurdagidar, himself could have asked the Receiver to submit accounts and deposit the money. It can not be done in a separate suit like the present one. This submission is also misconceived in view of the decision of the Bombay High Court in the case of Jekisondas Maganlal v. Nanabhai Jhinabhai (AIR 1953 Bombay 105), wherein it has been held :- "The expression Court as used in R.4 of O.40 can only mean the Court which appointed the receiver and not the Court which entertains and passes a decree in respect of any liability of the receiver for his default or negligence. The liability of a receiver declared in a suit can obviously be enforced by execution of the decree by the Court which passed the decree, which may not necessarily be the Court which appointed the receiver." ( 17. ) It is further contended by Shri Rathore, learned counsel that the Supurdagidar i.e. Ishwar Dayal, was not directed to cultivate the suit land and was further not directed to submit the accounts and deposit income from such land. Aforesaid submission is also not liable to be accepted because the Supurdagidar is obviously appointed for protection arid preservation of the property. He is obviously required to take reasonable care and proper precaution for preservation of the property in the manner as is expected from the owner himself. No agriculturist would allow the land to remain uncultivated. Receiver is definitely accountable for his own fault and gross negligence. In case, if the order of appointment of Supurdagidar was silent on this issue, Supurdagidar ought to have sought instructions/directions from the SDM. In the absence of any constraint, Supurdagidar was obviously under an obligation to cultivate the suit agricultural land and to make earnings therefrom. Legal effect of an order appointing Receiver has been explained by the Division Bench of Allahabad High Court in the case of S.A.Jawwad v. Maqsood Jahan (AIR 1978 Allahabad 73), in following words :- "The legal effect of an order appointing a Receiver is that the property becomes custodia legis. It, therefore, follows that even where an order of appointment of Receiver is not exhaustive and explicit with regard to the conferment of a particular duty or function but it is necessarily implied in such order, it is the duty of the Receiver to perform such functions in the course of management and preservation of the property, but in such cases it is imperative for him to obtain the previous leave of the court for discharging such duties and incurring any expenses or liability on that account." ( 18. ) In view of the aforesaid discussion, it is observed that the plaintiffs having not claimed through Seel Dulaiya are not bound by the admissions made by her with regard to mesne profits and the Supurdagidar has been rightly held liable vis a vis plaintiffs by the courts below. ) In view of the aforesaid discussion, it is observed that the plaintiffs having not claimed through Seel Dulaiya are not bound by the admissions made by her with regard to mesne profits and the Supurdagidar has been rightly held liable vis a vis plaintiffs by the courts below. Moreover, it has been stated by the Receiver himself in his written statement that he has deposited the mesne profits with Seel Dulaiya. His this statement clearly goes to show that he had produced crops on the suit agricultural land. Thus, his accountability vis a vis plaintiffs can not be doubted at all. Substantial questions of law No.1 and 2 in S.A.No.86/01 are accordingly answered against the appellants in the said S.A. ( 19. ) As regards Substantial Question No. 1 in S.A.No. 38/01, Shri K.S.Shrivastava, learned counsel appearing for the plaintiffs/appellants stated at bar that the plaintiffs have prayed for mesne profits arising during the period prior to institution of the suit. He further fairly accepted the plaintiffs liability to pay the courts fee on the amount of mesne profits. Substantial question of law No. 1 is answered accordingly. As regards, substantial question No.2, it has been submitted that the rate of mesne profits has been fixed by the learned lower appellate Judge on lower side However, it is admitted by Shri K.S Shrivastava, learned counsel that there is no contrary, cogent evidence, so as to warrant interference in the findings of facts with regard to rate of mesne profits. Learned counsel has been unable to point out non consideration of any contrary cogent evidence or consideration of any inadmissible evidence by the lower appellate court while granting mesne profits. This being so, the finding of facts arrived at by the learned lower appellate court in respect of mesne profits are not found to have suffered from any infirmity. This substantial question is accordingly answered against the plaintiffs. ( 20. ) In the result, both the appeals fail and are hereby dismissed. No order as to costs. Petition dismissed.