Research › Search › Judgment

Patna High Court · body

2018 DIGILAW 1253 (PAT)

Damyanti v. Bishundeo Pd. Mandal

2018-08-08

SANJAY KUMAR

body2018
ORDER : Sanjay Kumar, J. I.A.No.4197 of 2017 & I.A.No.6842 of 2017 I.A.No.4197 of 2017 has been filed by respondent no.2 praying therein to appoint him as receiver in place of his father Late Bishundeo Prasad Mandal. 2. I.A.No.6842 of 2017 has been filed on behalf of appellant (plaintiff) for appointment of her son Ashutosh Das as receiver of suit properties. 3. Heard learned counsels for both the parties. 4. The appellant before this court is sole heir and daughter original plaintiff Smt. Janki Devi who had filed the partition suit claiming share in the suit properties. After contest the suit was decreed in part and it was held that the plaintiff was entitled to half share in the properties which was allotted in the share of her mother in the year 1955 as per Ext-N and remaining half share in favour of respondent no.12 (defendant no.8th party). The plaintiff being aggrieved with the said partial decree has filed this appeal. She filed an application under order XL Rule 1 of C.P.C. for appointment of receiver which was allowed in terms of order passed in Miscellaneous Appeal no 98 of 1963 whereunder the main contesting party defendant no.1 was appointed as receiver. Initially the defendant was directed to deposit a sum of Rs. 6000/- yearly by 1st October in each calendar year during the pendency of the suit. After disposal of suit the plaintiff-appellant filed application before this court which after hearing was allowed as per order no.14 dated 27.01.1988 in following terms:- "Having considered the arguments of the learned counsel for the parties, I think that in view of larger area in possession of the respondent, the deposit of a sum of Rs. 9,000/- per year will not meet the ends of justice because the order of deposit of a sum of Rs. 6,000/- was passed sometime in the year 1967. Mr. Jha on being pointed out this fact and having known the feeling of the Court, volunteered to raise it to Rs. 12,000/- per year. Mr. Chuni Lal appearing for the appellant has no objection that this petition be disposed of on terms that the respondents shall continue to deposit a sum of Rs. Mr. Jha on being pointed out this fact and having known the feeling of the Court, volunteered to raise it to Rs. 12,000/- per year. Mr. Chuni Lal appearing for the appellant has no objection that this petition be disposed of on terms that the respondents shall continue to deposit a sum of Rs. 12,000/- from the Ist October, 1988, till the disposal of the appeal and each party noticed under the order dated 29.7.1970 in Misc.Appeal No.98/63 shall be entitled to draw double the sum that they were entitled to under the previous order, without furnishing any security." 5. The contesting respondent no.1 Bishundeo Prasad Mandal who was appointed receiver died on 25.11.2013 and since then there is no receiver. The respondent no.2 and appellant have filed the aforesaid two interlocutory applications for their appointment as receiver. 6. The learned counsel for the appellant submitted that after the death of respondent no.1, his family members are using the properties and mismanaging the same since more than four years. They have constructed structure over the residential partition of suit properties and also allowed few strangers to occupy some of the portion of suit land. It has been also submitted that due to price rise in yearly income from the sale proceeds of the usufruct from the suit land has increased and it can't be less than Rs. 8,00000/- (eight lacs) per annum. The appellant has thus, offered to deposit rupees eight lacs per annum with the undertaking and fidelity that she will manage the property with her son Ashutosh Das in the event of his appointment. 7. The respondent no.2 filed I.A. No. 4197 of 2017 and counter affidavit to the I.A. No. 6842 of 2017 denying the allegations made by appellant. It has been submitted that as per decree, the plaintiff is entitled to only 10 bigha 10 katha 14 dhur land out of 21 bigha 1 katha 8 dhur which was allotted to the mother of plaintiff in the partition held in the year 1955. The learned counsel for the respondent no.2 has however, volunteered to deposit the same figure rupees eight lacs per calendar year as offered by the appellant for managing the suit property. 8. The learned counsel for the respondent no.2 has however, volunteered to deposit the same figure rupees eight lacs per calendar year as offered by the appellant for managing the suit property. 8. In the case in hand, I find that the respondent no.1 (since dead) was appointed receiver and as per order dated 27.01.1988, he was directed to continue deposit a sum of Rs. 12,000/- from 1st October 1988 till the disposal of the appeal. The appellant filed an I.A. No. 5654 of 2004 to enhance the said amount of Rs. 12,000/-. This court as per order dated 16.03.2005 modified the earlier order and directed the respondent to deposit one lac from October 2004. The family of respondent no.2 admittedly is using the suit property since the death of respondent no.1 and so in my view it appears just and convenient to appoint respondent no.2 Krishna Mohan Mandal as receiver who shall deposit rupees eight lacs annual from 01.08.2018. The said amount shall be deposited half yearly i.e. rupees four lacs shall be deposited in the first week of February 2019 and remaining four lacs of second half in the first week of August 2019. The remaining part of said order dated 27.01.1988 passed by this court as regards share of the parties in the said amount remain intact. 9. In view of above discussions, the interlocutory applications are disposed of. The I.A. No. 4197 of 2017 is allowed and Sri Krishna Mohan Mandal is appointed receiver to manage the suit property t ill the disposal of appeal on the terms and conditions discussed above. 10. The interlocutory application no.4197 of 2017 and I.A. No. 6842 of 2017 stand disposed of.