High Court Patna High Court - Orders

Ajay Kumar Yadav &Amp; Ors vs Ashok Kumar Yadav &Amp; Ors on 24 September, 2010

Patna High Court – Orders
Ajay Kumar Yadav &Amp; Ors vs Ashok Kumar Yadav &Amp; Ors on 24 September, 2010
           IN THE HIGH COURT OF JUDICATURE AT PATNA
                        FA No.226 of 2005
                     AJAY KUMAR YADAV & ORS
                              Versus
                    ASHOK KUMAR YADAV & ORS
                            -----------
                                  ORDER

15. 24.09.2010. Heard the learned counsels for the parties on the

Interlocutory Application No.4476 of 2005 filed on behalf of

the appellant under Order 39 Rule 1 & 2 praying therein to

restrain the respondents from selling the suit properties.

(2) The learned counsel appearing on behalf of the

appellant submitted that the respondents are trying to sell the

suit property and negotiating with outsiders. On the other

hand, the learned counsel for the respondent submitted that

there is no question of selling the suit property and the

statements made by the appellant is entirely false. At the

time of hearing of the injunction application, the learned

counsel appearing on behalf of the respondent No.4 submitted

that he is not intending to sell any property, however, the

learned counsel submitted that the plaintiff suit for partition

has been dismissed by the Court below on the ground that

there had already been partition between the parties, and,

therefore, no prima facie case is made out and injunction

cannot be granted.

(3) From perusal of the sale deeds annexed by the

respondents in the counter affidavit to the injunction

application, it appears that in those sale deeds the plaintiff

has clearly mentioned that there had been amicable partition
2

between the parties and the property is in exclusive

possession of the appellant and, therefore, he sold the

properties.

(4) From perusal of the impugned Judgment also, it

appears that the sale deeds executed by the plaintiff-

appellant were filed by the defendants which were marked

Exhibit. It further appears that these sale deeds were

executed during the pendency of the suit itself. The learned

Court below considered these statements made by the

appellant in these sale deeds to the effect that there has been

partition between the parties and he is in exclusive possession

of the property and then he sold the property by various sale

deeds. Therefore, prima facie, it appears that the appellant

has admitted previous partition and the learned court below

has dismissed the suit for partition on that ground. If further

appears that during this long period, there is no instances of

selling of any property by the respondent whereas appellant

has sold many properties during the pendency of the suit.

Further, the respondents denied the allegation of selling.

(5) I, therefore, find that the plaintiff-appellant has

got no prima facie case and balance of connivance is also not

in his favour. In view of the above facts and circumstances of

the case, there is no question of any loss to the appellant

arises.

(6) I, therefore, find no merit in this Injunction

application and accordingly, this injunction application, i.e.
3

I.A. No. 4476 of 2005 is rejected.

(7) Heard the learned counsels for the parties on

I.A. No.3900 of 2006 filed by the appellant under Order 40

Rule 1 C.P.C. for appointment of Receivers.

(8) From perusal of the application, it appears that

prayer for appointment of receiver has been made on the

ground that respondents are enjoying the suit properties to

the exclusion of the appellant and they are not paying a single

farthing to the appellant.

(9) It is well-settled principal of law that the object

of appointing a receiver is to protect and preserve and

manage property during pendecy of a suit and it is recognized

as one of the harshest remedies. For appointment of

receiver, the appellant has to prove strong prima facie case.

The learned counsel for the appellant submitted that if

receiver is appointed, no harm will be caused to the

respondent. In my opinion, the mere circumstances that the

appointment of a receiver will do no harm to anyone is not a

ground for appointing receiver. In this case as discussed

above while deciding the injunction application, it was found

that the plaintiff has got no prima facie case and, therefore, in

my opinion, this finding will apply in this Interlocutory

Application for appointment of receiver also. There is no

averment regarding wastage or damage caused by the

respondents to the properties.

(10) As has been stated above, the plaintiff suit has
4

been dismissed finding that there had already been previous

partition. That finding is based on the admission of the

appellant made in the registered sale deeds executed by him

during the pendency of the suit. Therefore, prima facie case

is against the appellant. Accordingly, I find that this is not a

fit case for appointment of receiver.

(11) In the result, the receiver application, i.e., I.A.

No.3900 of 2006 is hereby rejected.

(12) Heard the parties on I.A. No.5500 of 2006.

(13) This application has been filed under Section

151 C.P.C. by the appellant praying therein to allow the

appellant to put a sine board on the properties mentioning

therein that the properties are the subject matter of First

Appeal pending before this Court.

(14) From perusal of the application, it appears that

the same set of statements have been made which have been

made in the injunction application and receiver application. In

my opinion, the relief prayed for by the appellant is not

warranted in this case in view of the above findings. In the

interest of justice, no such relief could be given to the

appellant. Accordingly, this application, i.e., I.A. No. 5500 of

2006 is also rejected.

( Mungeshwar Sahoo, J.)
Sanjeev/