IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.252 of 2004 VISHWANATH PRASAD, SON OF LATE RAMAUTAR RAM, RESIDENT OF MOHALLA-GADIYANI, BARA BAZAR, WARD NO.4, MADHUBANI TOWN, POLICE STATION-MADHUBANI, DISTRICT- MADHUBANI. ……………………………………DEFENDANT NO.1-APPELLANT. Versus 1. GANESH PRASAD, SON OF LATE RAMAUTAR RAM, RESIDENT OF MOHALLA-GADIYANI, BARA BAZAR, WARD NO.4, MADHUBANI TOWN, POLICE STATION-MADHUBANI, DISTRICT-MADHUBANI. 2. VISHWAMBHAR PRASAD. 3. DIGAMBAR PRASAD. BOTH SONS OF LATE RAMAUTAR RAM, R/O MOHALLA- GADIYANI, BARA BAZAR, WARD NO.4, MADHUBANI TOWN, P.S. AND DISTRICT-MADHUBANI. ……………………………………PLAINTIFF-RESPONDENTS. ----------- For the Appellant : M/s. M.N. Parbat, Uday Chand Prasad and Binod Kumar Singh, Advocates. For the Respondents : M/s. Prabhash Ranjan and Ashok Kumar, Advocate. ------------ O R D E R Defendant No.1 of Partition Suit No.176 of 2002 has preferred this appeal against the order dated 6.4.2004 passed therein by Subordinate Judge-I, Madhubani, whereby he has dismissed the petition filed by defendant no.1 under Order XL, Rule 1 C.P.C. for appointment of a receiver to realize the monthly rent and due rent from their tenants, whose detailed list alongwith the rent due against each of them was furnished at the foot of the petition. From the impugned order it appears that the said petition was dismissed on the basis of an erroneous interpretation and application of the decision reported in 1990(2) B.L.J.R. 895 and - 2 - holding that it would not be proper to appoint a receiver for realising the rent from the tenants and that the defendants should take proper and effective steps for the same either by filing a money suit or eviction suit. Admittedly guidelines have been set forth by precedents for appointment of receivers and for the purpose reliance is required to be placed on the decision of T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty(AIR 1955 Madras 430) where the Lordships have laid down five broad principles. Even otherwise wastage, damage and alienation of property are also relevant consideration for the purpose. In the instant case, admittedly, it is a partition suit inter se the plaintiff and the defendants. The status of the plaintiff and the defendants is immaterial in asmuch as all are co-parceners vis-a-vis the property and till partition is effected all of them continue to be landlord of the alleged tenants and are entitled to the rent proceeds. The stand in the written statement that there is no unity of title and possession between the parties to the suit since the joint family properties have already been partitioned between all the co- sharers with the help of well wishers and punches which appears to have articulated the impugned order cannot be accepted. Had that position existed, then the partition suit could very well have ended by now on the basis of such mutual partition. Moreover, there is nothing to show the happening of such mutual partition. Accordingly, while setting aside the impugned order and allowing the appeal, I direct the trial court to appoint any competent - 3 - person, as it feels fit, to be the receiver for the purposes of collection or rents which shall be deposited in court and defrayed amongst the parties as per the terms of the partition on conclusion of the suit. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 24th of April,2009. Nawal Kishore Singh/A.F.R.