MISC. APPEAL No.660 OF 2008 ( In the matter of memo of appeal under order 43 rule 1(5) of the Code of Criminal Procedure against the order dated 29.09.2008 passed by the 1st Subordinate Judge, Siwan in Title Suit No. 80 of 2008) ********* 1. RAGHAV RAI 2. RAMJEE RAI 3. SAILENDRA KUMAR RAI ALL ARE SONS OF LATE SURAJ RAI 4. MOSTT. RAMPATI KUER WIFE OF LATE SURAJ RAI ALL ARE RESIDENT OF VILLAGE GYASPUR, POST OFFICE BALLU PARGAN CHANBAR, POLICE STATION GUTHANI, DISTRICT SIWAN ………………………………………DEFENDANTS/APPELLANTS VERSUS 1. RAMASHISH RAI 2. JANARDHAN RAI BOTH ARE SONS OF RAJA RAI, RESIDENT OF VILLAGE GYASPUR, PARGANA CHOUBAR, POLICE STATION GUTHANI, DISTRICT SIWAN ************* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. With the consent of the parties, this appeal is being disposed of at the admission stage itself. The appeal arises out of an order, dated 29.09.2008 passed in Title Suit No. 80 of 2008 by which the Court below has appointed Shri Binod Singh, Advocate as a receiver of the disputed lands. 2 The genealogical table will explain the relationship between the parties. RAM KHELAWAN RAI / ------------------------------------------------------------------- / / / KISHUNA RAI MURLI RAI MAHABIR RAI / (died issueless) / ------------------------------------------------------------------- / / SARYUG RAI RAJA RAI / ------------------------------------------------------------------- / / / SURAJ RAI (dead) RAMASHISH RAI JANARDHAN RAI RAMPAT KUER def.-4 Pl. / (issueless) Pl. / / / ------------------------------------ --------------------------------------------------------------- / / / / / / RAGHAV RAMJEE MANANJI SHAILENDRA / RAI RAI RAI RAI / def def def def. / / ------------------------------------------------------------ / / / / BIRENDRA BRAHMA AKHILESHWAR MALKA RAI RAI RAI RAI The plaintiffs are claiming partition with respect to 2/3rd share of the lands described in schedule I of the plaint. Schedule I lands are the ancestral lands aof the parties to the suit; whereas Schedule II lands have been acquired by the plaintiffs and defendants from the common pool of the joint family funds. The case of the defendants, on the other hand, is that there was an oral partition in the family and 3 each of the party have been allocated shares over the suit lands which are in their respective possession. The defendants also claim that the suit would fail on the ground that notice has not been served on one of the heirs of one branch of the family and the plaintiffs have also failed to implead the grand daughter of Sarju Rai in the suit as a party. The defendants also claim that Sarju Rai had a daughter who gifted her share in the lands to the sons of Suraj Rai by a registered deed of gift. On the basis of the aforesaid submissions the defendants claim that the plaintiffs have not been able to make out a good prima facie case in their favour. It is the specific case of the plaintiffs that in the year 2007, the defendants refused to divide the usufruct of Schedule I and II lands and they began to use illegal means to cultivate the lands in question. A proceeding under Section 144 of the Code of Criminal Procedure was initiated by the plaintiffs with respect to Schedule I lands which was dropped by the Sub Divisional Judicial Magistrate, Siwan on 17.01.2008. After the proceeding under Section 144 of the Code of Criminal Procedure was dropped, the defendants felt further fortified and refused to partition the joint family lands which led to the filing of the present suit. The defendants in support of their case have pleaded that they are in possession of the lands and that the 4 rent (Malguzari) is paid by them. After the suit was filed, an application was made by the plaintiffs-respondents in the Court below praying therein that a receiver should be appointed for the lands in question since the plaintiffs have no other source of income and they are being deprived of the usufructs of the joint family property. The application under Order 40 Rule 1 was vehemently opposed by the defendants. During the pendency of the application under Order 40 Rule 1, the Court below appointed a Pleader Commissioner to report to the Court (a) whether there was any sign of partition in each of the plots of the lands as mentioned in Schedule II, (b) to report the measurements of each of the plots (Tukra) of lands and (c) to report any special features pointed out by the plaintiffs or the defendants. Much emphasis has been placed by the Counsel for the defendants on the report of the Pleader Commissioner. The report indicates that there was no sign of division in Schedule I lands with respect to the lands situated in village Gyaspur, and that the lands in Gyaspur were in the possession and under cultivation of the defendants. The rest of the lands of Gyaspur appears to be partitioned and are in possession of each of the parties according to partition. With respect to Schedule II lands, the Advocate Commissioner is said to have reported that the 5 lands seem to be partitioned amongst the parties. In my opinion, whatever conclusion the plaintiffs and defendants draw from the report of the Advocate Commissioner can not be accepted by this Court for the reason that the report is vague. The Advocate Commissioner ought to have specifically stated the Khata Number, Khesra (plot) Number, measurement of area of the plots in question and specified as to which of the party was in possession of the lands in question with respect to both Schedule I and Schedule II lands. Merely saying that there was a partition (BIBHAJAN) is not sufficient for the reason that it does not indicate the method or extent of the said partition and the area of land in possession of each of the parties. Any one who has some experience with the nature and plotting of agricultural lands would know that plots of lands are divided by ridges (small mounds of earth) for facilitating cultivation and as such this by itself would not indicate that there has been a partition of the lands. Therefore, I find that neither party could rely on the report of the Commissioner. To say the least, it is incomplete. The arguments in the Court below as well as before this Court on behalf of the plaintiffs is that they have a good prima facie case and are entitled to enjoy the usufructs of the joint family lands specially in view of the fact that they have no other source of income to sustain 6 themselves and their family. The defendants submits that on the basis of pleadings of the plaintiffs that the defendants are in possession of the land, it would be just and proper that defendants should be appointed as receiver in this case and the appointment of an Advocate as a receiver is highly unjustified. It is further submitted that the plaintiffs have not been able to show that they have a good prima facie case and as such the Court below has erred in appointing a receiver in the facts of this case. However, in the application under Order 41 Rule 5 of the Code of Civil Procedure before this Court the defendants have stated at paragraph 6 “that the Court below ought to have appointed the defendants as receiver as they are ready to cultivate and abide by all terms and conditions as laid down in the impugned order for giving accounts and partition share as per direction of the Court if he is entrusted with the duty to discharge the function of a receiver.” If the prayer of the defendants is allowed, this Court feels that there will be endless allegations and counter allegations by the parties which will not solve the dispute and delay the disposal of the suit. On behalf of the plaintiff- respondents, it is submitted that they are willing to be jointly appointed as receiver of the lands which are subject matter of the suit. In the aforesaid background, this Court 7 would now consider whether in fact a receiver ought to have been appointed in this case? The object of appointing a receiver is to preserve and safeguard the property for the benefits of those who are entitled to it. There are two main classes of cases in which the appointment of a receiver is made. It may be classified as cases which (1) enable persons to possess rights over property to obtain the benefits of those rights and to preserve the property pending realization where legal remedies are defective and (2) to preserve the property from some danger which threatens it. The second class of case includes those cases where appointment is made to preserve the property to ensure proper management, pending litigation to decide rights of the parties. In the present case, the plaintiffs are claiming partition of 2/3rd share of the property and have asserted that they would have no source of income to maintain themselves if the defendants are allowed to continue in possession of the entire lands and use the usufructs thereof. Therefore, I find that the view of the Court below that the plaintiffs have made a good prima facie case in their favour can not be set aside or held to be unreasonable on any ground whatsoever. The stand of the defendants that the plaintiffs have not taken steps to implead the grand daughter of Suraj Rai as a party in this case is a disputed fact and at this 8 stage, this Court can not make any comment on that aspect of the matter. This Court also finds that prima facie merely pleading prior oral partition is not sufficient for the purpose of showing that the joint family properties have been partitioned prior to the filing of the suit as no details are given with respect to the date, manner and allocation of shares of the respective branches of the family of Ram Khelawan Rai. For the reason aforesaid, this Court is further fortified in its view in holding that the plaintiffs had a good prima facie case and as such their application for appointment of receiver should be allowed by the Court. Mr. S. S. Dwivedi, learned Senior Counsel appearing on behalf of the defendants-appellants in this case has submitted before this Court that even if the Court finds that the plaintiffs have a good prima facie case, the Court ought to consider that the other requirement i.e. balance of convenience lies in favour of the defendants as it is admitted by the plaintiffs-respondents that the defendants are in possession of the entire land, as such it is the defendants who ought to be appointed as receiver in this case on the terms and conditions mentioned in the application under Order 41 Rule 5 of the Code of Civil Procedure. I may refer here to the judgment in the case of Kamal vs. Rajendra, AIR 1976 Patna 366 wherein this Court has considered this aspect of the matter by observing 9 that in a partition suit where one of the co-owner occupies the whole property and excludes the other co-owners, from the share of rents and profits of the properties, the case of appointment of receiver is made out although no waste or mismanagement by other co-owner in possession is proved. I may also refer to a Division Bench decision of the Patna High Court in the case of Ram Kishore vs. Balram Sah, AIR 1978 Patna 210. The fact of the case was that the Court below had refused to appoint a receiver to the property belonging to a Math. The plaintiff who was earlier the Mahant was removed and the defendants came to be in possession of the Math properties. The Court below rejected the appointment of a receiver on the ground that it was an admitted fact that the defendants had come into possession of the math property. The Court observed that an application for receiver is usually made when the other side is in possession of the properties over which the receiver is sought to be appointed. This Court held that this can not be a ground for refusing to appoint a receiver and remanded the matter back for consideration. Therefore, the Court ought to be satisfied upon the materials produced before it that the party should making application for appointment of receiver has established a good prima facie case and that the property which is the subject matter of the proceedings will be in 10 danger if left unattended till the trial in the pending or under the control of only one of the parties to the suit. As already observed this Court is satisfied that the plaintiffs have a good prima facie case and given the circumstances that during long drawn proceeding they would be left remediless and without any source of income since all the properties in question, except the house are agricultural properties, the facts warrants that the Court should appoint a receiver. Learned Counsel for the defendants further submitted that the appointment of an Advocate as a receiver of the property in question is unwarranted. I do agree with the submission of the defendants. I do not think that a stranger of an Advocate should be appointed as a receiver with respect to management of agricultural lands as it would be impossible for anyone who does not have any experience in this field and does not live in the villages to cultivate the agricultural lands which requires personal supervision and care. Therefore, the appointment of an Advocate as a receiver by the Court below is set aside. However, instead of remanding the matter back in its entirety, which would clearly mean skirting the issue and prolonging the agony of the parties and delaying the trial of the case, I think it would be proper for this Court to give some positive directions by appointing a receiver with certain directions, which are as here: 11 (a) It is directed that the Court below will determine the area of the land in disputeby appointing a Pleader Commissioner along with an Amin to measure the total area of the lands on the basis of the plots as no description of the lands has been given in the written statement at the cost of both the parties. (b) The total area of the lands will also include the area in possession of the respective parties and finally divide the lands in the ratio of 2/3rd lands to the plaintiff and 1/3rd to the defendants for the purpose of cultivation. I may clarify that in this manner both the plaintiffs and the defendants have been appointed as receivers of the lands in question to manage the share they have claimed in the entire property. (c) Both the plaintiffs and the defendants will give the account to the Court below so that both the parties may be aware of the produce of each season and may be allowed to utilize the usufructs thereof in accordance with their share i.e. 2/3rd and 1/3rd. (d) It is made clear that the division of the lands in question should be equitable as far as possible taking into account the fact that the plaintiffs should also disclose the lands which are in their possession or under their cultivation so that the division may be equitable. (e) The division of the lands would be subject 12 to the final results of the suit. (f) The parties should undertake in writing to surrender the lands which are divided amongst them as a result of this order after the final decision in the suit. I further direct the Court below to expedite the suit and both the parties should not unnecessarily pray for time on the smallest pretext. This appeal is disposed of with the aforesaid observations and directions. ( Sheema Ali Khan, J. ) Patna High Court April 15, 2009 A.F.R./haque/Anand