MISC. APPEAL No.122 OF 2000 In the matter of an Appeal under Order 43 Rule 1(s) of the Code of Civil Procedure. *********** 1. Raj Kishore Tiwary, S/o Sri Satya Narayan Tiwary. 2. Usha Devi, W/o Shiv Shankar Tiwary. 3. Rashmi Devi, W/o Radheshyam Tiwary. 4. Rakesh Kuamr Tiwary, S/o Baban Tiwary. 5. Munshi Devi, W/o Raj Kishore Tiwari. 6. Saraswati Devi, W/o Late Ram Dev Tiwari. 7. Gangajali Devi, W/o Swaminath Malah. 8. Bimla Devi, W/o Shyam Sunder Tiwari. 9. Kalawati Devi, W/o Sankatha Tiwari. 10. Basmati Devi, W/o Banshidhar Tiwari. 11. Sita Devi, W/o Bali Ram Tiwari. 12. Rajeshwari Kuer, W/o Late Jagdish Tiwari. All R/o Village-Dughara, Police Station Sonhan, District-Kaimur (Bhabua) ……..Appellants….Defendants. Versus 1. Satyendra Tiwary alleged adopted son of Late Jagdish Tiwary. 2. Anjani Tiwary minor son of Satyendra Tiwary. Through Satyendra Tiwary, father Natural Guardian and next friend. Both Resident of Village-Dughara, Police Station-Sonhan, District-Kaimur (Bhabua). ………Respondent……Plaintiff. 3. Shyam Bihari Tiwary, S/o Late Basudeo Tiwary. 4. Surendra Tiwary, S/o Late Lalita Tiwary. 5. Chandan Tiwary. 6. Priyatam Tiwary. Both minor sons of Surendra Tiwary through Surendra Tiwary father, Natural Guardian and next friend. 7. Lalmuni Devi, W/o Lalita Tiwary. 8. Shivpujan Tiwary. 9. Ram Pujan Tiwary. Both sons of late Indradevo Tiwary. 10. Most. Sushila Kuer, W/o Late Ram Ekbal Tiwary. 11. Bandana Kumari, D/o Late Ram Ekbal Tiwary. 12. Most. Guljari Kuer, W/o Late Shiv Shankar Tiwary. 13. Birendra Tiwary. 14. Arun Tiwary. 15. Sanjay Tiwary. 16. Manish Tiwary minor. All sons of Shyam Bihari Tiwary. 17. Arbind Tiwary minor. S/o Shyam Bihari Tiwary, through Shyam Bihari Tiwary, father, natural guardian and next friend. 18. Prinsh Tiwary. 19. Bacha Bela. Both minor sons of Birendra Tiwary through Birendra Tiwary father, natural guardian and next friend. 20. Shailendra Tiwary. 21. Rinku Tiwary. Both minor sons of Shiv Pujan Tiwary through Shiv Pujan Tiwary, father, natural guardian and next friend. 22. Jitendra Tiwary, S/o Ram Pujan Tiwary. 23. Munna Tiwary. 24. Tunna Tiwary. Both minor sons of Ram Pujan Tiwary through Ram Pujan Tiwary father natural guardian and next friend. 25. Pintu Tiwary. Minor son of Jitendra Tiwary through Jitendra Tiwary father, natural guardian and next friend. 2 All resident of Village-Dughara, Police Station Sonhan, District-Kaimur (Bhabua)…………Respondents………Plaintiffs. ************* For the Appellants : Mr. V. Nath, Adv. : Mr. Ashok Kumar, Adv. : Mr. Walliur Rahman, Adv. For the Respondents : Mr. J.P. Shukla, Sr. Adv. : Mr. R.K. Shukla, Adv. ************** P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH ************* Anjana Prakash, J. The appellants are aggrieved with the order dated 15.12.199 passed by Sub Judge in Title Suit No. 120 of 1997/46 of 1998 by which the Sub Judge has appointed the Defendant No. 13 as Receiver for the property detailed in Schedule ‘K’ of the plaint. The background of the case is that a Title Suit bearing No. 120 of 1997 was filed by Respondents-(Plaintiffs) to set aside sale deeds executed by Rajeshwari Kuer in favour of Appellants-(Defendants 1 to 17) for the properties detailed in Schedule ‘K’ as illegal and not binding upon the parties of the suit since Respondent No. 1 (Plaintiff) claimed to be the adopted son of Rajeshwari Kuer and her husband late Jagdish Tiwary, whereas the case of the Appellants- (Defendents) No. 1 to 11 was that the Plaintiff No. 1 was not the adopted son of late Jagdish Tiwary and Rajeshwary Kuer and the story of adoption was completely false. It has been submitted on behalf of the Appellants that on 09.07.1997 an application was filed for restraining the purchasers from interfering in the possession which prayer was rejected by order dated 21.08.1997. Being 3 aggrieved with such refusal MA No. 494 of 1997 was filed before this Court which was disposed off by order dated 15.04.1998. Significantly, during the course of hearing of said Miscellaneous Appeal the Plaintiffs-Defendant herein conceded that they would be satisfied if the properties already transferred is not further transferred herein after by the purchasers during the course of the suit. In effect therefore the Plaintiffs/Defendants conceded that the possession of the suit land was with the Appellants herein. Thus the submission is that under Order 40 Rule 1 Sub-rule 2 there is a specific bar on reopening the issue in view of acceptance of the Plaintiffs-Respondent herein that the Appellants were in possession and, therefore, no Receiver should have been appointed. It has further been submitted that while appointing Receiver the Court did not exercise due caution nor did it follow the strict rules in this regard and has relied on a decision reported in 2007(3) PLJR 417 in support of his contention. On the other hand, the Counsel for the Defendants submits that the powers of the Court with regard to Injunction and Receiver are different and even though an injunction was refused by the Sub Judge in the Court below an application for appointment of the Receiver was very well maintainable and a Receiver was rightly appointed. In support of such a contention, the counsel relies on AIR 1976 Patna 366 and AIR 1978 Patna 210. 4 On going through the order impugned, I find that after full discussion of the case of both the parties the Court concluded that the suit property was exposed to manifest peril and since the plaintiff was joint owner with Rajeshwari Kuer a prima facie title rested in his favour. However, on close examination of the impugned order one does not find any reason having been assigned for such a conclusion that the suit lands were in peril of being wasted. Here, I would like to refer to the decisions cited on behalf of the Respondents reported in AIR 1978 Patna 210 wherein also the Court had held that a Receiver can only be appointed after the Court is satisfied that the party has prima facie an excellent chance of success in the suit as also that there is some emergent danger to the property demanding immediate action. However, the case reported in AIR 1976 Patna 366 has no bearing in present case since the facts are quite different. As for the decision reported in (2007) 3 PLJR 471 it has been held, after considering all the leading decisions on the point of appointment of Receiver, that the five principles which had been set out in the case of T. Krishnaswamy Chetty vs. C. Thangavelu Chetty and Others reported in AIR 1955 Madras 430 had to be followed. Two of which significantly, and having direct bearing on the case were, that there should be some imminent danger to the property demanding immediate action as also Receiver be not appointed where it has the effect of depriving a party of his de facto possession. Moreover once it is amply demonstrated that the case of the Appellants being in possession of the suit land was accepted 5 by the Respondents the issue was not open. Hence apparently the principles of appointment of Receiver were not followed in the present case. In view of the discussion above, this appeal is allowed and the order dated 15.12.199 passed by Sub Judge in Title Suit No. 120 of 1997/46 of 1998 is, hereby, set aside. However, the Court below is directed to conclude the proceeding within a period of six months from the date of receipt of this order so that there is no further aggravation of ancillary disputes with regard to the suit land to which both the parties agree. Let the LCR be transmitted to the Court concerned immediately. (Anjana Prakash, J.) Patna High Court, Patna, Dated the 25th March, 2011. NAFR/Vikash/-