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2015 DIGILAW 3172 (ALL)

Deepak Kumar v. Babita

2015-10-08

MANOJ KUMAR GUPTA

body2015
JUDGMENT Manoj Kumar Gupta,J. 1. The petitioners have approached this Court under Article 227 of the Constitution, challenging the order dated 3 July, 2010 passed by Second Additional Civil Judge (Junior Division), Kairana, District Muzaffarnagar, in Original Suit No. 87 of 2009, allowing the application 71-C, under Order 40, Rule 1 CPC. By the said order, the trial court has appointed receiver over the properties of deceased Narayan Singh, and a further direction has been issued for sending a communication to the collector, Muzaffarnagar for obtaining his consent under Order 40, Rule 5 CPC. The other order under challenge is dated 27.5.2015 passed by Additional District Judge, Court No. 1, Muzaffarnagar, whereby Civil Appeal No. 43 of 2010, preferred against the order of the trial court dated 3 July, 2010 has been dismissed. 2. The suit property, admittedly was owned by Late Narayan Singh, who died on 29.3.2009. The petitioners are the nephews of deceased Narayan Singh. The plaintiff-respondents are the daughters of Late Narayan Singh. They instituted Original Suit No. 87 of 2009 seeking declaration that the sale deeds dated 29.3.2009, allegedly executed by Narayan Singh in favour of the petitioners be declared as null and void and for permanent injunction restraining the defendants from interfering in their possession on the basis of the impugned sale deeds. The suit properties have been divided into Schedule A, which comprises of agricultural land wherein, Narayan Singh had a share and Schedule B comprising of a residential house. Indisputably, the sale deed in favour of the petitioners is in respect of the share of deceased Narayan Singh in respect of the agricultural land disclosed in Schedule A. The case of the plaintiff-respondents was that the sale deeds dated 29.3.2009 were obtained by playing fraud and coercion and thereafter, Narayan Singh was also murdered by the petitioners on the same date. It was claimed that the sale deeds were without any consideration and being null and void are liable to be declared as such. 3. The suit was contested by the petitioners by filing written statement in which it is pleaded that Late Narayan Singh had initially bequeathed his entire properties in their favour by means of a Will dated 12.3.2009. It was claimed that the sale deeds were without any consideration and being null and void are liable to be declared as such. 3. The suit was contested by the petitioners by filing written statement in which it is pleaded that Late Narayan Singh had initially bequeathed his entire properties in their favour by means of a Will dated 12.3.2009. It is claimed that the plaintiff-respondents, after coming to know of the Will executed by Narayan Singh in favour of the petitioners, started quarreling with him, consequently, in order to avoid any further complication, he also executed registered sale deeds dated 29.3.2009 in favour of the petitioners and the fourth respondent. The specific case of the petitioners was that the sale deeds were for valuable consideration and were duly executed by Late Narayan Singh. They further claimed that they are in possession of the suit property and their possession is since before the execution of the impugned sale deeds, as they already had share in the agricultural properties. It is further pleaded that Narayan Singh died a natural death and the allegation that he was killed is false and motivated. 4. During the pendency of the suit, the plaintiff-respondents filed an application dated 12.1.20100 under Order 40, Rule 1 CPC for appointment of a receiver. In the said application, it was alleged that the petitioners have succeeded in harvesting the crop sown over the agricultural land by their Late father Narayan Singh, by taking forcible possession. They are appropriating the income and profits arising out of the land to their own exclusive use and thus, it is just and expedient to appoint a receiver so that the income, which is derived from the suit property is duly accounted for. 5. The application filed by the plaintiff-respondents was opposed by the petitioners on the same pleas, as were taken in the written statement. It was specifically pleaded in the objection that the petitioners being in possession of the suit property on the basis of registered sale deed in their favour were entitled to harvest the crop. It was pleaded that by appointing a receiver, the petitioners who are in settled possession of the suit property, can not be dispossessed. 6. It was specifically pleaded in the objection that the petitioners being in possession of the suit property on the basis of registered sale deed in their favour were entitled to harvest the crop. It was pleaded that by appointing a receiver, the petitioners who are in settled possession of the suit property, can not be dispossessed. 6. The trial court by detailed order dated 3 July, 2010, allowed the application for appointment of receiver, being of the opinion that prima facie the sale deeds in favour of the defendant-petitioners appears to be a result of fraud and coercion. It has been held that the death of Narayan Singh had taken place in suspicious circumstances. The trial court concluded by holding as under: - "On the whole, in the aforesaid background, this Court is of the most considered opinion that some sort of force or coercion, fraud and foul play appears to have been played on the deceased Narayan Singh and the same can not be ruled out in the facts and circumstances of the case before me. Therefore, it is the humble opinion of the Court that it must appoint a receiver on the properties of the deceased, keeping in view its ultimate task of dispensing justice, since the truth remains to be unraveled and the trial awaits." 7. The order passed by the appellate court, as noted above, has been affirmed by the appellate court with the dismissal of the appeal filed by the petitioners. 8. Learned counsel for the petitioners vehemently submitted that the ingredients of Order 40, Rule 1 CPC are not made out and as such the courts below erred in appointing a receiver. It is urged that the trial court has not recorded any finding that it is just and convenient to appoint a receiver, which is sine qua non for exercise of power under Order 40, Rule 1 CPC and thus, the impugned orders can not be sustained. It is further submitted that power under Order 40, Rule 1 CPC can not be exercised for removing a person in settled possession of the property. It is urged that the impugned order passed by the trial court on mere suspicion that the sale deed in favour of the petitioners is a result fraud, coercion and misrepresentation is thus, not sustainable in law. 9. It is urged that the impugned order passed by the trial court on mere suspicion that the sale deed in favour of the petitioners is a result fraud, coercion and misrepresentation is thus, not sustainable in law. 9. It is further urged that in case the sole apprehension of the plaintiff-respondents is that the income, which would be derived from the suit property is in danger of being appropriated by the petitioners, to the exclusion of the plaintiffs, the same could be taken care of by directing the petitioners to deposit such amount on regular basis as the court may deem fit and proper, in the facts and circumstances of the case. In order to show their bonafides in this regard, the petitioners have filed an affidavit dated 16 September, 2015, whereby the initial offer made by them has been enhanced, and they have showed willingness to deposit Rs 4 lacs per annum. Learned counsel for the petitioners has submitted that in case the impugned orders are set aside, the petitioners would deposit Rs 4 lacs per annum in two six-monthly installments in the month of May and November every year, until the suit is finally decided. 10. Learned counsel for the plaintiff-respondents Sri Nipun Singh took time to obtain instructions from his client. Today, after consulting the plaintiff-respondents, he made a statement that the offer is acceptable to the plaintiff-respondents. He, however, submitted that there is apprehension that once the petitioners are permitted to remain in possession of the suit property, they will protract the litigation. He therefore urged that in order to safeguard the interest of the plaintiff-respondents, this Court may fix a time frame, within which the suit is to be decided. 11. Learned counsel for the petitioners Sri Divakar Rai Sharma has no objection in case the suit is directed to be decided within a fixed time frame. He made a statement that the petitioners will co-operate in disposal of the suit. 12. In view of the aforesaid statement made by learned counsel for the parties, this petition is disposed of in the following terms: - (A) The petitioners shall deposit Rs 4 lacs per annum before the trial court starting from the year 2015. The first installment of Rs 2 lacs would be deposited within 15 days from today. On deposit of the first instalment the impugned orders shall stand set aside. The first installment of Rs 2 lacs would be deposited within 15 days from today. On deposit of the first instalment the impugned orders shall stand set aside. (B) The second installment shall be deposited by the petitioners in the month of November, 2015 and thereafter all future installments each of Rs 2 lacs, shall be deposited in the month May and November every year. (C) The trial court shall invest the amount in interest bearing fixed deposit of a Nationalised Bank, initially for a period of one year and will keep it renewing, until the suit is decided finally. (D) The amounts, which would be deposited by the petitioners would abide by the final decision in the suit. (E) The aforesaid arrangement shall be without prejudice to the rights and contentions of the parties. (F) In case of default of any of the terms and conditions stipulated above, the order passed by this Court shall stand vacated automatically and the order of the trial court appointing the receiver shall stand revived. 13. The trial court shall make all endeavour to decide the suit expeditiously, without granting unnecessary adjournment to the parties and as far as possible within a period of one year. Learned counsel for the parties agree not to seek unnecessary adjournments. 14. With these observations and directions, the petition stands disposed of finally.