JUDGMENT
Devinder Gupta, J.
(1) The first application (I.A.No.3044/93) filed by the plaintiff under Order 40 Rule 1 of the Code of Civil Procedure is for the appointment of a receiver to have possession, control and charge of the ground floor of the property bearing No.N-85, Greater Kailash, New Delhi and further to direct that no alterations, changes of any kind whatsoever, whether structural or otherwise, be carried out by the defendants or any one claiming under them in the said property.
(2) The second application (I.A.No-7557/94) is by defendant No.7 under Section 151 of the Code praying that the plaintiff be directed not to obstruct the defendant/applicant and her workmen from going to the terrace of the ground floor and undertake the repairs/replacement of overhead tank, T.V.Antina, opening and repairing of the water drains, plastering etc. and also for any other necessary repairs as and when required.
(3) In the suit filed by the plaintiff on 5th October, 1990, he has prayed for a decree for partition with respect to three properties, namely, N-85, Greater Kailash, Part-1, New Delhi; C-58, Preet Vihar, Delhi; and Shop No.5677, Sadar Bazar,Delhi along with the business of M/s.Mahajan Traders carried out from the shop premises. Plaintiff and defendants 1 to 3 are the sons, defendant No.4 is the widow and defendant No.5 is the daughter of late Shri Durga Dass Mahajan. Defendant No.6 is the minor son of defendant No.l. In nutshell the suit is filed on the allegation that the suit properties are the Joint Hindu Family Properties having been acquired with the aid of Joint Family Funds. There has been family arrangement, after the death of Shri Durga Dass Mahajan, on 21st January, 1990, through letter of confirmation on 30th July, 1990, but defendants have not been adhering to the said family arrangement, which necessitated the plaintiff in filing the suit for partition.
(4) The suit is contested by the defendants. Defendants 1 and 2 have also filed counter claim. The defendants have denied the plaintiffs entitlement to have the property partitioned on number of grounds, which need not be reiterated while disposing of these two applications. On 6th October, 1990, when summons were directed to be issued to defendants an interim order was passed in I.A.8207/90 restraining the defendants from transferring, alienating or otherwise parting with possession in favour of any one or from entering into any agreement with respect to the property C-58, Preet Vihar, Delhi till further orders. This order continues to be in force till date.
(5) On 9th May, 1991, an interim arrangement was made with respect to the business premises, on an application made in that behalf, namely, I.A.No-6293/91. This interim measure was directed to remain in force during the pendency of the suit by an order passed on 14th May, 1991. On 16th April, 1993, an order was passed in I.A.3783/93, which had been moved by the plaintiff, seeking direction that till next date no further construction of any nature shall be carried on in the suit property.
(6) I.A.3044/93 was presented on 15th March, 1993 alleging that I.A.2272/92 was filed by the plaintiff in which no interim order was passed. Feeling aggrieved against the said order, the plaintiff preferred an appeal [FAO (OS) No.49/92}, in which on 12th March, 1992, an order was made by the Division Bench of this Court directing status quo to be maintained regarding portion of the property bearing No.N-85, Greater Kailash Part-1, New Delhi, which was stated to be in possession of the plain tiff, till further orders. It is alleged in the application that in order to frustrate and render the plaintiffs suit infructuous and in order to dispossess the plaintiff from property No.N-85, Greater Kailash, New Delhi, possession of the ground floor has been handed over by the defendants to outside agencies including those portions, which were in joint and common use and possession of the plaintiff also, such as, drive way, Kitchen, loft, rear and back loft, W.C. etc. It is also alleged that subsequent to the taking over possession of the ground floor, efforts were made to effect certain changes and carry out construction in the ground floor with the help of such unauthorised agencies or individuals, to whom possession had been handed over. In the meanwhile, interim order granted on 12th March, 1992 by the Division Bench was ordered to be continued with further modification that the plaintiff was allowed to continue using the common facilities admitted by both the parties, including ingress and egress. It is also stated that the Division Bench in its order clarified that since no order had been passed by the Single Judge with regard to appointment of Court Receiver, liberty was reserved to the plaintiff to file fresh application. This is how fresh application was filed. The plaintiff contends that possession of the outside agencies/individual in the ground floor is with malafide intention at the behest of the defendants, who have colluded in order to deprive the plaintiff of his legitimate rights and to make the entire suit infructuous, therefore, necessity has arisen to appoint a receiver.
(7) This application is vehemently opposed by the defendants. Defendants I and 2 in their reply have stated that prayer made in the application is directed only against the defendants, .whereas property to the knowledge of plaintiff already stood transferred by defendant No.5 to one Mrs.Bimla Tyagi, who is in occupation of the same. It has been stated that property N- 85, Greater Kailash Part-1, New Delhi was self acquired property of late Durga Dass Mahajan who bequeathed the same in favour of his daughter Neelam Mahajan with life interest given to his wife Smt.Satyawati Mahajan. It is stated that no receiver in the case can be appointed when the property is no more in possession of the defendants. The plaintiff has no right in the property which was the absolute property of Mrs.Neelam Mahajan daughter of late Shri Durga Dass Mahajan with life interest having been given to Smt.Satyawati Mahajan wife of late Shri Durga Dass Mahajan and mother of Mrs.Neelam Mahajan exercising her right in the property No.N-85, Greater Kailash Part I, New Delhi has already sold the property by registered sale deed and the persons who have purchased the property are in possession of the same except the portion, which is in the illegal occupation of the plaintiff. It is further alleged that the plaintiff is only in occupation of the built up portion on the first floor and in no other portion of the property and the defendants are in no more possession of the property No.N-85, Greater Kailash Part I, New Delhi, which as stated above, is in possession of Smt.Bimla Dutt wife of Shri Ishwar Dutt and this aspect of the matter is fully known to the plaintiff who has admitted this fact when he moved C.M.2431 of 1992 in FAO(OS).49/92. Vacant possession of the ground floor was given to the transferee. The plaintiff has not been in occupation of the ground floor. He has been in unauthorised occupation of only a built up portion of the first floor.
(8) Noticing the averments in the two applications, the Court on 23rd February, 1994, directed Bimla Tyagi to be added as defendant No.7, who was also directed to appear in person in Court on the next date together with full details of the transaction of sale that had taken place in respect of the property. It is in this background that the application deserves to be decided.
(9) It may be noticed that the written statement has not been filed by defendants 3 to 6 and newly added defendant No.7. Defendant No.7, however, has resisted the application.
(10) Though the plaintiff has made an averment as regards actual possession and enjoyment of certain portions of the first floor, but in view of the stand, which has been taken by defendants 1 and 2 in the written statement as well as in reply to I.A.10740/91 and I.A.411/92, the fact remains that in September, 1992, on the basis of a sale deed Bimla Tyagi has acquired title through defendant No.5, who claims to be the owner of property on the basis of a will alleged to have been executed by late Durga Dass Mahajan. The two wills dated 12th November, 1979 and 19th July, 1982 set up in the written statement are subject matter of the main controversy between the parties. It is Bimla Tyagi, who has come in occupation of the ground floor and is stated to be in control and use thereof. Bimla Tyagi has also admitted the possession of defendant No.l on a portion of the first floor.
(11) It being a case where members of the family are already in litigation wherein claim of the plaintiff is for partition and where a transferee through one of the members of the family, who claims herself to be the sole and exclusive owner and dispute the nature of the property that it was never a part of Joint Hindu Family Property, I do not consider it to be a fit case for appointment of a receiver. In case property is ultimately held to be a part of the Joint Hindu Family Property, liable to be partitioned and not exclusively owned by defendant No.5, plaintiffs right can be adjusted, irrespective of possession of defendant No.7, but it certainly is not a case where it will just and convenient to appoint a receiver on the mere allegations as made in this application. There is already an order passed in this case directing the maintenance of status quo as regards possession of the plaintiff. Consequently, the application (I.A.3044/93) is dismissed.
(12) The second application (I.A.7557/93) deserves to be allowed. The case of defendant No.7 is that plaintiff intentionally and deliberately with malafide intention and also to harass her and other family members, has caused huge leakage of water from the over-head water tank on the roof of the ground floor. The first floor admittedly is partly built upon. It is alleged that the drains from the roof are blocked by the plaintiff with the result that water remains stagnant on the roof thereby causing heavy seepage through the roof (ceiling of ground floor) and walls of ground floor, particularly drawing room and the two rear bed rooms. The was are damp and soaked due to the seepage. It is also alleged that the plaintiff has damaged the water head tank as well as T.V.Antena installed on the first floor. The application is supported on the affidavit of the applicant, who has also appended various photographs. There is no reply filed to this application.
(13) The applicant, defendant No.7 is in occupation of the ground floor. It cannot be disputed that she is entitled to use the same, without interference and in case it is necessary, she is entitled to carry out necessary repairs, to keep the premises habitable. For the purpose of carrying out repairs’ in case some obstruction is caused by plaintiff, direction deserves to be issued. Accordingly, while allowing the prayer made in the application, the plaintiff is restrained from interfering, in any manner, in defendant No.7 getting the repairs carried out. Defendant No.7 can have the repairs carried out through her workmen or through any other contractor. The plaintiff is restrained from causing any obstruction to any person during the process of carrying out repairs. Defendant No.7 is also permitted to have replaced the over-head tank, T.V.Antena etc. and to have the water drains opened and plastering etc. done. Carrying out of repairs will not entitled defendant No.7 to effect any structural changes to any part of the premises. In order to ensure that no obstruction is caused during the process of carrying out of repairs, in case of necessity, defendant No.7 can have police assistance. The application stands disposed of.
S.N0.3041/90
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(14) LIST.for directions on 2nd March, 1996.