JUDGMENT
B.P. Das, J.
1. The present civil revision is directed against the order dated 14.12.1998 passed by the 2nd Additional District Judge, Berhampur, in Misc. Appeal No. 3 of 1997/(Misc. Appeal No. 85/96- ODC), confirming the order dated 12.11.1996 passed by the Civil Judge (Senior Division), Aska, in M.J.C.No. 78 of 1996, arising out of T.S.No. 28 of 1996, rejecting an application under Order 40, Rule 1 of the Code of Civil Procedure filed by the plaintiff-petitioner for appointment of receiver of the suit land during the pendency of the suit.
2. The facts as delineated in the revision petition tend to reveal that the present petitioner-Khalli Sahu filed a suit for declaration of his right, title and possession over the suit land and to permanently restrain the defendant-opp. parties from going upon the suit land. The case of the plaintiff is that the suit land is a part of the property belonging to late Kasinath Sahu, and, after his death is 1940, the property was succeeded by his widow-Suna Sahuani. Kasinath and Suna had no male issue except three daughters, namely, Subarn, Jena and Leelabati. The present petitioner, who is the plaintiff in the trial Court, is the husband of the third daughter-Leelabati and opp. party No. 2- Jerna is the second daughter. All the three daughters got married but the third daughter- Leelabati lost her husband some time after her marriage and, therefore, she had to live with her mother. The widow of late Kasinath Sahu with an intention to have an illatom son-in-law to look after her gave Leelabati in marriage to the present petitioner, who agreed to the same and in consideration thereof, Suna had executed a gift deed on 9.11.1957 giving thereunder half of her interest-in the entire property including land and house. As per the gift deed, the donor had Ac. 12.91 cents of cultivable land out of which she donated to Leelabati and her husband-Khalli an area measuring Ac. 6.451/2 cents. The old suit survey No. 472 of Patta No. 156 comprises an area of Ac. 1.74 cents and was included in the schedule of which half interest was gifted. The claim of the plaintiff is that after the death of Suna in 1961, her three daughters succeeded to their mother in respect of other half of Ac. 12.91 cents which was in possession of their mother. The petitioner further alleges that the eldest daughter of Suna, i.e., the sister of his wife, and her husband-Raghunath clandestinely created a deed of partition on 19.4.1962 amongst the three sisters, by taking advantage of the absence of the plaintiff-petitioner and by virtue of the aforesaid deed of partition the disputed land of Ac. 1.74 cents was allotted in favour of the second daughter-Jema, opp. party No. 2. The petitioner further claims that in spite of partition of the suit land he continued to possess the same though that fell to the share of Jema, opp. party No. 2, and on 10.9.1995 Jema had executed a deed of relinquishment in respect of the suit land in favour of Leelabati, i.e., wife of the petitioner. It is also stated by the plaintiff that the aforesaid suit land was recorded in the name of opp. party No. 2 Jema during the settlement operation of 1986 on the basis of the partition deed of 1962. The plaintiff claims that the said recording was done during his absence from the village when he had gone to Berhampur for treatment. But at the time of distribution of patta in respect of the suit land, the same was received by the petitioner. The petitioner further alleges that without any possession, opp. party No. 1 and on the allegation of disturbance created by opp. party No. 1 in the peaceful possession of the plaintiff, the latter initiated a proceeding Under Section 145,Cr.P.C. to get the land attached but the said proceeding was dropped and on the allegation that opp. party No. 1 was creating disturbance and trying to disturb the possession of the petitioner, the suit was filed along with an application under Order 40, Rule 1, C.P.C. praying for appointment of receiver on the ground that the petitioner being in continuous peaceful possession of the suit land, he shall suffer irreparable loss if a receiver is not appointed in respect of the suit property.
3. The case of the opp. parties in opposing the application for appointment of receiver is that all the daughters of Suna were in joint possession of the entire estates left behind by their father-Kasinath till 1962, when they partitioned the same amongst themselves by a registered deed of partition and as the suit land fell to the share of Jema, she possessed the same. The suit land was accordingly recorded in the name of Jema during the settlement operations. On 19.1.1996 Jema transferred the suit land in favour of opp. party No. 1 by a registered deed for a consideration of Rs. 40,000/- and has delivered possession thereof to opp. party No. 1, who is in possession of the same on his own right. The defendant-opp. parties also raised the question of maintainability of the misc. case at the instance of the present petitioner on the ground that he is a stranger to the suit property.
4. The learned trial Court while disposing of the application filed by the plaintiff-petitioner under Order 40, Rule 1, C.P.C. for appointment of receiver, recorded clear finding by disbelieving the claim of the petitioner that he has been in continuous possession of the suit land, particularly in view of the fact that the suit land has been recorded in the name of opp. party No. 2 in the R.O.R. of 1986 which was also within the knowledge of the plaintiff-petitioner, who has received the patta in the year 1986. The learned trial Court also observed that when the rightful owner, i.e., opp. party No. 2- Jema, has transferred the suit land to abonafide purchaser, putting the suit land under attachment or appointing a receiver shall cause irreparable loss to opp. party No. 1. On the aforesaid finding, the learned trial Court rejected the prayer for appointment of receiver. The aforesaid order of rejection has been confirmed by the learned appellate Court.
5. Appointment of receiver is not a matter of course and being one of the harshest remedies, this discretion must be exercised by Court with great care and caution.
6. In the decision in Sarada Dei etc. v. Khirod Kumar Sahu etc. : 55 (1983) CUT461, so cited by the defendants, Hon’ble R.C.Patnaik, J. (as His Lordship then was) relying upon a decision in T. Krishnaswamy Chetty v. C. Thangavalu Chetty, AIR 1965 Madras 430, wherein Ramaswamy, J. enunciated the five principles described as the “Panch Sadachar” of our Courts, observed :
“‘……….Where the property is in medio, the appointment of a receiver affects no party’s possession and is in their interest. The consideration, however, is different where the property is in possession of the defendants, the appointment of receiver has the effect of disposing the person in actual possession. In order therefore to justify the appointment of receiver in the latter category of cases, the appointment has to satisfy by strong and compelling reasons, such as, dissipation of, danger or injury to the property in dispute……”
His Lordship also relied upon a decision in Rasi Dei v. Bikal Moharana : AIR 1965 Ori. 20, wherein it was observed :
“The appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril. Therefore, this exceedingly delicate and responsible duty has to be discharged by the Court with the utmost caution. The principles to be followed for appointment of receiver as laid down are these : Not only must the plaintiff show a case of adverse and conflicting claim to property, but he . must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. An order appointing a receiver will not be made where it has the effect of depriving a defendant of a de facto possession since that might cause irreparable wrong. The high prerogative act of taking property out of the hands of one and putting it in pound under the order of the judge ought not to be taken except to prevent manifest wrong imminently impending.
Hence the Court should not appoint a receiver of property in the possession of the defendant who claim it by legal title, unless the plaintiff can show prima facie that he has a strong case and good title to the property. The Court must consider whether special interference with the possession of defendant is required, there being well founded fear that the property in question will be disputed or other irreparable mischief may be done unless the Court gives protection. The mere circumstance that the appointment of a receiver will do no harm to anyone is no ground for appointing a receiver.”
7. Coming to the facts of the case at hand, it is seen that as the suit property fell to the share of Jema-opp. party No. 2 by virtue of the registered partition deed executed by the three daughters amongst themselves, the same was recorded in her name during the settlement operations in 1986. Thereafter the suit land was sold by a registered sale deed dated 19.1.1996 in favour of opp. party No. 1 for a consideration of Rs. 40,000/-. No material was placed by the plaintiff-petitioner either before the trial Court or before the appellate Court to substantiate his claim that he is in continuous possession of the suit land. That apart, the plaintiff has also miserably failed to show a prima facie case that he has a strong case and good title over the suit land. Moreover, unless and until the settlement patta, registered deed of partition and the sale deed are set aside in the suit, defendant No. 1 holds a good title over the suit property. In the aforesaid background, when the findings of the Courts below are clear and unambiguous, any interference by this Court would be harsh to the defendant-opp. parties.
8. On an analysis of the matter and following the aforesaid authorities, I do not see any reason to differ from the views taken by the Courts below.
In the result, the civil revision is dismissed. I make no order as to costs.