IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.201 of 2007
Gyanendra Prasad Yadav @ Shashi Babu & Ors.
Versus
Surendra Yadav @ Surendra Nath Yadav & Ors.
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ORDER
23. 10.12.2010 1. Heard Mr. R.S. Mazumdar, the learned
Senior Counsel on behalf of the appellants and Mr.
Keshav Srivastava, the learned Senior Counsel on behalf
of the respondent No.1 on the Interlocutory Application
No.8666 of 2010.
2. The defendants-appellants have filed this
interlocutory application under Section 151 C.P.C.
praying therein for appointment of receiver with respect
to the suit property as well as with respect to the
property i.e. holding No. 14/15 situated at Thakurbari
Road, Patna which is in possession of the respondent
No.1.
3. It appears that the plaintiffs-respondents
filed Partition Suit No. 302 of 1995 for 1/2 share in lot 1
of schedule 1 property and 1/5th share in lot 2 of
schedule 1 property. The appellants contested the said
partition suit. The defendant No.3-appellant also filed a
counter claim to the effect that the plaintiff intentionally
has not included the holding No. 14/15 at Thakurbari
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Road Patna which is also a joint family property should
also be partitioned. It appears that during the pendency
of the suit by terms of order dated 1.7.1997 passed by
Sub Judge, 10 Patna a receiver was appointed with
respect to the suit property mentioned in Schedule 1 of
the plaint.
4. So far counter claim is concerned the case
of the plaintiffs is that the said property was acquired by
his father-in-law in his name and, therefore, it is not the
joint family property. After trial the learned trial court
decreed the plaintiffs’ suit for partition and dismissed the
counter claim of the defendant-appellant. As has been
admitted by the parties the order of appointment of
receiver passed by the court below is still subsisting.
5. This application has been filed for
appointment of receiver on the suit property afresh and
also on the property which was mentioned in counter
claim and dismissed by the trial court.
6. Mr. Mazumdar, the learned Senior counsel
appearing on behalf of the appellants submitted that the
appellants have got excellent chance that the appeal will
be allowed. The plaintiffs-respondents got receiver
appointed with respect to the property which was in
possession of the appellants and, therefore, receiver
should also be appointed with respect to the property
which was intentionally not included in partition suit. The
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learned counsel further submitted that in fact at the time
acquisition of that property the respondent No.1 was
aged about 7 – 8 years i.e. in the year 1945 and there is
no mention in the sale deed that the consideration
amount was paid by his father-in-law. The learned
counsel further submitted that lakhs of rupees is being
received by the plaintiff from the tenants inducted on the
said properties. On these grounds the learned counsel
prayed that receiver may be appointed.
7. On the other hand, the learned Senior
counsel for the respondents submitted that the learned
court below after trial held that the property is not the
joint family property and in fact, it was acquired by the
father-in-law in the name of plaintiff-respondent No.1
and, therefore, unless that finding is set aside, no
receiver can be appointed.
8. Admittedly, so far the suit properties
mentioned in the plaint are concerned a receiver has
already been appointed by the trial court. The order has
been annexed with the interlocutory application. By the
impugned judgment and order also the learned court
below found that property which is standing in the name
of plaintiffs-respondents is not the joint family property.
In the case of Vijay Kumar Vs. Smt. Kiran Devi 2007
(3) PLJR 417, this Court has held that in case of
appointment of receiver a prima facie case would not be
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sufficient, rather the plaintiff has to show that has a very
excellent chance of succeeding in the suit. Merely
showing a case of adverse and conflicting claims to
property will not suffice, rather the plaintiff has to show
some emergency or danger demanding immediate action
and the court should appoint a receiver only when there
is a great and imminent danger demanding immediate
relief. In case of title only the court should be very
reluctant to disturb possession of a party by appointment
of a receiver. Receiver can be appointed only when the
property is exposed to imminent danger and emergency
and the person in possession has obtained it through
fraud or force requiring interposition by receiver for the
security of the property. Appointment of receiver is a
stringent matter and it become more stringent in a
partition suit.
9. In view of the above decision, in my
opinion, which is fully applicable in the present case, if
the receiver is appointed it will amount to dispossessing
the plaintiffs-respondents from the property which has
been held not to be joint family property. The appellants
are yet to establish their right over the said property.
Further there is no averment at all to the effect that the
property is being wasted or damaged and the property is
in danger in the hands of the plaintiffs-respondents. The
property has been acquired in the name of plaintiffs-
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respondents as far back as in 1945. As stated after
considering the evidences available on record the lower
court below negatived the claim of the appellant. The
only allegation is that because receiver has been
appointed by the trial court on the joint family property a
receiver should also be appointed for the property which
is not mentioned in the plaint and mentioned in the
written statement by way of counter claim. Accordingly,
it appears that instead of filing the application under
Order 40 Rule 1 C.P.C. this application has been filed
under Section 151 C.P.C. In my opinion, when there is
specific provision in the C.P.C. the court will not exercise
inherent jurisdiction to override the specific provision.
10. From the discussion made above, in my
opinion this is not a fit case where a receiver should be
appointed regarding the property which has been held to
be not joint family property. So far the suit property is
concerned receiver has already been appointed. I
therefore, find no merit in the application. Accordingly,
this interlocutory application is rejected.
S.S. (Mungeshwar Sahoo,J.)