IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.297 of 2005 RAM PRIT SINHA & ORS Versus SUBHASH PRASAD & ORS ----------- For the appellant: Mr. R.K.P.Singh, Adv. Mr. Bhushan Choudhary, Adv. For the respondents: Mr. Pashupati Pd. Singh, Adv. Mr. Deepak Kumar, Adv. ------------ 18. 20.11.2008 With the consent of both sides this appeal was heard finally under Order 41 Rule-11 and 12 of the C.P.C. The appellant/plaintiff had filed a partition suit before the court below demanding one eighth share in Schedule 1 and 3 and one tenth share in Schedule 2 the property of the plaint. The respondent no1. is full brother of the appellant and respondent nos. 2 and 3 are the sons of respondent no1. The plaintiff had filed the suit for partition amongst four brothers, the plaintiff being one, the respondent no.1 being the second and there were other two brothers and their descendants as defendants. The plaintiff though stated that the parties had separated in mess, business and cultivation as per convenience but there had not been any partition by metes and bounds and, therefore, the suit with the said share was filed. The plaintiff also took stand that he was cultivating the lands with the respondents and that plaintiff was in government service when and he - 2 - returned home after superannuation and started to participate in the joint cultivation of the land with the respondents, he felt difficulty and feeling himself a looser he instituted a suit for his share and during the pendency of the suit a petition for appointment of a receiver with regard to the properties as mentioned at the foot of the petition stated to be in the joint cultivation of plaintiff and respondents was filed. The appellant/plaintiff stated that respondents no. 1, 2 and 3 forcibly possessed all the lands and the appellant/plaintiff was being deprived of its fruits and profits. It was specifically stated in para-9 of that petition that twenty thousand bundles of paddy crops described at the foot of plaint which was kept in Khalihan were forcibly taken control of by respondents with the help of some strong man and bad elements of the society and that when the appellant/plaintiff demanded his share in the paddy it was not given to them. On the grounds of deprivation of fruits and profits of the lands between the appellant/plaintiff and the respondents/defendants and its wastage a prayer was made for appointment of a receiver with regard to those properties. The leaned Sub-judge-I, Barh, vide impugned order - 3 - dated 12.5.2005 as passed in title suit no. 81 of 2003 rejected the appellant/plaintiff’s prayer on the ground that there was no danger, emergency, loss or mismanagement demanding immediate action and that the prayer of the appellant/plaintiff is not bona fide. While arguing, the learned counsel for the appellant referred to the followings as mentioned in the impugned order. “by filing rejoinder, on behalf of defendants no. 1, 5, and 6 the learned counsel submitted that the suit land containing plot nos. 82, 333, 416, 8817, 304, 309, 650, 620, 640, 455, 740, 197, 198, 139, 348, 1678, 455, 644, 645, 5059, 5062, 239 and 240 are in possession of the plaintiff and defendant nos. 18, 19 and 20 as per their share in entire suit land.” On findings as above, as mentioned in the impugned order it was argued by the learned counsel for the appellant that the defendants also admit about the jointness of the appellant/plaintiff and the respondent nos. 1, 2 and 3 with their particular joint share. Though the defendants have pleaded a case of partition already taken earlier which is denied by the plaintiff on the ground that the earlier - 4 - partition was not by metes and bounds. Be that as it may, even the defendants admit the joint status of appellant/plaintiff and the respondents who were defendants no. 18 to 20. The learned counsel for the appellant also referred to Annexure-2, the show cause reply which was submitted by the respondent before court below. In para-10 of the show cause reply the respondents have categorically admitted that the family of the plaintiff and the respondents, namely, defendants nos. 18 to 20 are joint and the other respondents are separated. In para-14 of the show cause reply the respondents have also mentioned that the appellant/plaintiff is himself the Karta and Manager of the joint family of the appellant and respondents and appellant/plaintiff was not managing the property well and remained hostile to the respondents. In para-18 of the show cause reply the respondents also mentioned that some of the plots were sold and it was in possession of purchasers. On the averment of the respondents in their show cause reply as above, the learned counsel stressed his submission that the appellant/plaintiff and the respondents/defendants no.18 to 20 are joint. It was also - 5 - argued that the respondents/defendants themselves admitted that some plots were sold. The learned counsel for the appellant submitted that respondents/defendants were selling lands which are the joint properties of the appellant/plaintiff and the respondents/defendants. It was also submitted that the respondents/defendants deprived the appellant/plaintiff of fruits and profits of the joint lands by way of forcibly removing away the twenty thousand bundles paddy crop in which no share was given to the appellant/plaintiff despite their demand of share in it. On these grounds the prayer for appointment of a receiver was made for the purpose of the preservation and protection of the joint property as mentioned in detailed at the foot of the petition which was originally filed before the court below for the appointment of receiver. In support of his contention, the learned counsel cited the decision of a Division Bench of this Court in the case of Kamal Choudhary and Anr. Vrs. Rajendra Choudhary and Ors. reported in AIR 1976 Patna 366 wherein this Court held that in a partition suit when co- owner occupies the whole properties and excludes the other co-owner from the share of rent and profits of the properties - 6 - a case of appointment of receiver is made out, although, no waste or mismanagement by the other co-owners in possession is proved. In this case there is admitted case as per averment of these respondents themselves in their show cause as filed before the court below that the appellant/plaintiff and the respondents are jointly cultivating the land. The respondents blame the plaintiff themselves with assertion that the appellant/plaintiff is himself the Karta but he depriving the respondents of the fruits and profits. On the other hand the appellant/plaintiff says that the respondents are depriving them of the fruits and profits of the land in their joint cultivation. Any way deprivation of the fruits and profits of one side is alleged on the ground that the other side is availing fruits and profits of the properties in their joint cultivation. The plaintiff also stated specific instance of forcible removal of twenty thousand bundles of paddy crop and deprivation of his share. During the hearing the learned counsel for the respondents raised some technical points that in this suit the other defendants have not been arrayed as respondents in this appeal. The learned counsel for the appellant replied - 7 - that so far the particular question for the properties which are joint between the appellant and respondents the participation of other defendant is not necessary and it does not affect root of the matter as under consideration before this Court. The submission of the learned counsel carry substantial reasons, hence, his appeal cannot be dismissed on this technical ground. The leaned counsel for the respondents cited a single Bench judgment in the case of Most. Patri Devi @ Girija Devi and Anr. Vrs. Ganesh Lal Pradhan and Ors reported in AIR 2004, Patna 29. Under the cited decision there was nothing to show that the plaintiff had a good case of success and there was no finding as to the jointness of possession. Hence, under these circumstances the prayer for appointment of receiver was refused. Thus, the facts of the cited case was entirely different inasmuch as in the instance case there is admitted case of jointness of possession and also a case shown by the appellant/plaintiff about deprivation of fruits and profits of the joint land in the manner that twenty thousand bundles of paddy crop were forcibly removed away and the appellant/plaintiff is not given any share in it despite demands. - 8 - Thus, in view of the facts and circumstances, I feel that it is fit and proper case for appointment of a receiver for the preservation and protection of the properties which are mentioned at the foot of the petition (Annexure-1) which was originally filed before the court below while making prayer for appointment of receiver. During hearing it appears that the parties are not at variance before this Court on this point that the respondents are cultivating the lands as mentioned at the foot of the petition for appointment of receiver as filed before the court below. In such view of the matters, I feel it just and proper that the respondent no.1 Subhash Prasad Singh (defendant no.18) who is full brother of the appellant/plaintiff is appointed as receiver of those properties. He will take remain in control over the properties and will properly account for it before the Trial Court as per the mode and direction as given in the writ of appointment. The question of remuneration, if any, will be decided by the trial court. This appeal is, accordingly, allowed. (C. M. Prasad, J.) Ravi/-