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2013 DIGILAW 531 (JK)

Zoona (Mst. ) v. Bashir Ahmad

2013-09-11

MUZAFFAR HUSSAIN ATTAR

body2013
1. The petitioners/plaintiffs instituted a Civil Original Suit against the respondents/defendants. The suit was for grant of decree of declaration, partition and perpetual injunction. The petitioners, in the suit, have averred that the land measuring 5 Kanals and 2-1/2 Marlas covered under Survey No. 717, 716, 722 and 2838/713 situated at Kupwara is their joint property, same having been left behind by their mother, who was owner of the property and after her death devolved upon the parties of the suit. It is further claim of the petitioners in the suit that the parties raised construction of Shopping Complex consisting of 105 shops on the said piece of land and the rent they receive from the tenants of shops is their source of sustenance. 2. The respondents/defendants 1 & 2 filed written statement before the learned Trial Court and prayed for rejection of the suit under Order 7, Rule 11. It is further pleaded by the respondents 1 & 2 in the written statement that the suit property exclusively belongs to them and order on mutation was passed in respect of the property in their favour. It is also pleaded that the respondents/defendants decided to construct shopping Complex on the suit land and in this behalf they obtained term loan of Rs. 34.00 lacs from the Jammu and Kashmir Bank. The permission has also been granted by the concerned Statutory Authority for raising construction of shops in favour of the respondents/defendants. 3. The petitioners/plaintiffs, alongside the suit, filed application for appointment of receiver as also for grant of injunction. The learned Trial Court restrained the respondents/defendants from alienating or transferring the suit property and also ordered for appointment of receiver. The defendant no. 3, father of plaintiffs and defendants 1 & 2 was appointed as receiver. The respondents/defendants 1 & 2 being aggrieved of the said order challenged the same in a Civil Miscellaneous Appeal before the Court of Principal District Judge, Kupwara. The learned Appellate Court, vide its Order dated 16th February, 2013 set-aside the order of appointment of receiver passed by the Trial Court. 4. The petitioners being aggrieved of the order of learned Appellate Court have challenged the same in this writ petition. 5. Learned counsel for the petitioner submitted that the order on mutation in respect of land has already been challenged by the petitioners. 4. The petitioners being aggrieved of the order of learned Appellate Court have challenged the same in this writ petition. 5. Learned counsel for the petitioner submitted that the order on mutation in respect of land has already been challenged by the petitioners. Learned counsel further submitted that the appeal was dismissed being barred by time. Learned counsel also submitted that the matter is pending on the files of Financial Commissioner, Revenue and interim stay has been granted by the said Authority. 6. Learned counsel for the petitioner submitted that the land belonged to the mother of the petitioners and the contesting defendants, and after her death, the same has devolved upon them. Learned counsel further submitted that learned Appellate Court has allowed the appeal on the ground that `party' in the suit could not be appointed as a receiver and that the interests of the petitioners have been protected by the Trial Court. Learned counsel also submitted that Trial Court's order of appointment of receiver could not be set-aside on the ground that the order on mutation was passed in favour of the respondents/defendants. Learned counsel, accordingly, prayed for setting-aside the impugned order passed by the learned Appellate Court. 7. Learned counsel for the respondents argued in tune with their stand taken in the written statement and reply affidavit filed in this petition. 8. The appointment of receiver under Order 40 of CPC materially affects the valuable rights of a party. Appointment of receiver in respect of the suit property can be made in rare and exceptional cases. The effect of the appointment of receiver is deprivation of a person of the possession over his property. For appointing receiver of immovable property, it is not that a strong case is to be made out, but it has to be an extraordinary one. 9. In this case, it, prima-facie, emerges that the respondents/defendants 1 & 2 after obtaining permission from the competent Authority, had availed financial assistance to the tune of Rs.34.00 lacs for construction of 105 shops on the suit land. They have inducted tenants into constructed shops. There is no material evidence not to talk of strong evidence produced before the Trial Court by the petitioners/plaintiffs, which would even, prima-facie, show that they contributed in the construction of shops. In such circumstances, the Trial Court ought to have not appointed the receiver in respect of the suit property. They have inducted tenants into constructed shops. There is no material evidence not to talk of strong evidence produced before the Trial Court by the petitioners/plaintiffs, which would even, prima-facie, show that they contributed in the construction of shops. In such circumstances, the Trial Court ought to have not appointed the receiver in respect of the suit property. The Trial Court has illegally exercised its jurisdiction in appointing the receiver of the suit property. The interest of the petitioners could have been secured by directing that defendants shall not alienate or transfer the suit property during the pendency of the suit. The order of appointment of receiver passed by the Trial Court is unjust. 10. For the above stated reasons this writ petition is disposed of in the following manner:- The order of the Appellate Court is maintained. It is further directed that respondents/defendants 1 and 2 will not alienate the suit property during the pendency of the suit. The said respondents/defendants to file undertaking before the Trial Court within two weeks from today, indicating therein, that they will not alienate or transfer the suit property during the pendency of the suit. However, it is made clear that respondents/ defendants would be at liberty to let out the shops to any person and in this behalf, shall maintain accounts and shall submit the same after every three months before the Trial Court. This condition shall also form part of the undertaking to be executed by the respondents/defendants. Disposed of alongwith connected CMP(s) in the above terms.