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2010 DIGILAW 950 (PAT)

Most. Brij Kumari Devi v. Raj Narayan Dubey

2010-04-26

MUNGESHWAR SAHOO

body2010
JUDGEMENT 1. Heard the learned counsel Sri Bhaskar Jha on behalf of the appellants under Order 41 rule 11 C.P.C. 2. This Misc. Appeal has been filed by the plaintiffs appellants against the order dated 4.10.2007 passed by the learned Sub Judge-I, Buxar, in Title Suit No.8 of 2007 whereby and whereunder the learned Sub Judge rejected the application under Order 40 rule 1 C.P.C. for appointment of receiver. 3. It appears that the plaintiffs appellants filed the aforesaid suit for partition of their 1/4th share with respect to the Schedules-ll and Hi property. After filing the suit a separate application under Order 40 rule 1 C.P.C. was filed praying therein to appoint a receiver with regard to Schedule- Ill property. After hearing the parties and considering the materials available on record the learned court below by the impugned order rejected the prayer. 4. The learned counsel for the appellants submitted that if receiver is not appointed the appellants will be deprived from the usufruct of the suit property. The respondents have ousted the appellants from the fertile lands. As such there is always apprehension of breach of peace on the suit land and many proceedings are also going on. On these grounds the learned counsel for the appellants submitted that without considering these facts the learned court below has rejected the application for appointment of receiver. According to the learned counsel this is a fit case in which the receiver is required to be appointed. 5. From perusal of the impugned order it appears that the learned court below has considered the pleadings of the parties. In the counter affidavit to the application for appointment of receiver the defendants respondents clearly stated that there had been partition in the year 1987 with respect to all the suit property except Plots no. 1238 and 1236 which is the residential house of the parties. In the counter affidavit it is also stated that the out of Schedule -III property Plots No.772,771,774 and 2986 of Khata No.27 had already been transferred prior to the institution of the suit and, therefore, the parties have got no concern with the said plots now. It is also stated that there had already been partition in 1987 and according to that partition the parties are coming in possession of the properties. It is also stated that there had already been partition in 1987 and according to that partition the parties are coming in possession of the properties. It is also stated that in various proceedings the plaintiffs have admitted the facts of previous partition. 6. The learned court below also found that the plaintiffs appellants themselves at paragraph 6 of the plaint have specifically stated that so far Schedule-Ill property are concerned all the parties are in possession of the land according to their share.The learned court below also considered that in 144 C.P.C. proceeding the plaintiffs also admitted the partition. 7. From the above discussion it appears that the parties are in separate cultivating possession of the suit lands. 8. So far appointment of receiver is concerned the only allegation is that the valuable properties have been taken by the respondents and barren lands have been given to the appellants. According to the learned counsel for the appellants if receiver is not appointed there will be breach of peace and the appellants are being deprived of their legitimate share. It may be mentioned here that there is no allegation that the suit properties are being damaged or that other irreparable mischief may be done by the respondents. There is no allegation that the suit properties are going to be wasted. 9. It is well settled principles of law that the receiver is appointed to protect, preserve and manage property. To appoint a receiver under this order is subject to the controlling provision of Section 94 C.P.C. and is to be exercised for preventing the ends of justice from being defeated. The appointment of receiver is recognized as one of the harshest remedy which the law provides, extreme case and in circumstance when the interest of the parties claiming appointment is exposed to manifest peril. Therefore, the party who prays for appointment of receiver has to prove strong prima facie case for the appointment of receiver. On mere filing of application for appointment of receiver without there being any apprehension that the property in suit will be dissipated or that the property will be damaged no receiver can be appointed. 10. Therefore, the party who prays for appointment of receiver has to prove strong prima facie case for the appointment of receiver. On mere filing of application for appointment of receiver without there being any apprehension that the property in suit will be dissipated or that the property will be damaged no receiver can be appointed. 10. From the discussion above it appears that the learned court below after taking into consideration the fact that there has been partition and the admission of the plaintiffs is that they are in separate possession of their share had rightly not appointed receiver. If it is held that after trial that there had been no partition by metes and bounds then in such circumstance the plaintiffs will be entitled for fresh partition but on this ground it is not just and convenient to appoint a receiver. 11. In the result, I find no merit in this appeal and accordingly this Misc. Appeal is dismissed at the admission stage itself.