IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.18 of 2007 GOPAL PRASAD, s/o. late Babu Saheb, r/o. Mohalla- Nasriganj (Sikandarpur), P.O. Digha, P.S. Danapur, District- Patna at present residing at 6, Surpentine Road, P.S. Kotwali, District- Patna. ------- Appellant. Versus 1. RAJENDRA PRASAD, 2. Narendra Kumar Gupta, 3. Jayant Kumar Gupta, 4. Hemant Kumar Gupta, All s/o. late Babu Saheb, and r/o. Mohalla- Nasriganj, P.S. Danapur, Distt. Patna. ------- Respondents. Counsel for the Appellant: Mr. Ashutosh Ranjan Pandey --- Advocate. Counsel for the respondents: Mr. Ramanuj Tiwary ------Advocate. 12 25.11.2008 At the consent of both sides, this appeal was finally heard under Order 41 Rule 11 and 12 C.P.C. This appeal is against the order dated 11.12.2006 of the Sub Judge-I, Danapur, passed in Title Suit No.105 of 2005, whereby the prayer of appellant/plaintiff for appointment of receiver with regard to the suit land was refused. The appellant/plaintiff had filed the suit for partition of the suit properties with the defendants, who are his other four brothers. The plaintiff’s case was that in an amicable partition between the members of the 2 family the family properties were partitioned and the plaintiff/appellant, his four brothers (defendants) and their father have got their share vide memo of partition under Annexures-1 & 2. Plaintiff’s further case was that some of the properties like residential house and homestead land were joint. It was also the case of the plaintiff that after death of father, the other defendants came in possession of the properties which was given in share of the father and that the plaintiff was not allowed to enjoy its usufruct and that, therefore, the plaintiff filed the suit for partition for his share in that property. In the petition for appointment of receiver the plaintiff claimed that the defendant No.1 was in possession of the suit property i.e., the father’s property and that he was enjoying its usufruct and the appellant/plaintiff was not getting any share in it. Learned counsel for the respondent (defendant No.1) submitted that defendant No.1 was living with the father and he is managing the father’s share since and during father’s life time. It is also submitted that the father’s share is only a meager one amounting to 1 acre 3 and 8 decimals of land. Further submission is that the other defendants who are the brothers have not raised any objection to the management of the respondent/defendant No.1. In course of argument the learned counsel for the appellant/plaintiff submitted that the respondents are trying to deprive the appellant of his due share in the property by way of executing sale or gifts with regard to the property and reply to this submission learned counsel for the respondent-defendant No.1 who is said to be in possession of the property is not able to give any kind of assurance that the respondents have not disposed of any suit property or that they do not intend to do so. Learned counsel for the appellant submitted that the suit property is at the risk of being wasted, diminished or destroyed. Learned counsel for the respondent/defendant No.1 cited the case of Vijay Kumar V. Smt. Kiran Devi & Others reported in 2007(3) P.L.J.R. page 416, wherein this Court has held that a receiver can be appointed only when the property is exposed to imminent danger and emergency and when the defendant who is in possession 4 of the property would deprive others causing irreparable wrong to them. In this case the plaintiff has claimed the share in the property of the father, which is in possession of the defendant No.1. The share as claimed and argued on behalf of the appellant/plaintiff that the property is under risk of diminition or alienation and there being no assurance from the side of the respondent/defendant No.1 that they had not disposed of the property or they do not intend to do so, I feel that it is a case of urgency in which appointment of receiver is required with regard to the suit property. In such view of the matters, the order of the Court- below in refusing the prayer for appointment of receiver was not proper and justified, hence, the impugned order is set aside and the appeal is accordingly allowed. Respondent No.1 himself will be appointed the receiver of the suit properties. The remuneration of the receiver will be according to the terms and conditions as fixed by the trial court in the writ of appointment. Mkr. (C.M. Prasad, J.)