MISC. APPEAL No.555 OF 2004 1. Ramchandra Prasad Singh, son of Raghunath Mahto 2. Per-manand Prasad, Ramchandra Prasad Singh 3. Mahesh Prasad, Ramchandra Prasad Singh All resident of village Dayalpur, P.O. Mirchaiganj, P.S.: Nalanda, District-Nalanda. Petitioners Versus 1. Naresh Prasad, son of Kameshwar Pd @ Rameshwar Pd. 2. Rajesh Prasad, son of Kameshwar Pd @ Rameshwar Pd. 3. Om Prakash, minor son of Naresh Pd. Who is under guardianship of his father Naresh Pd. who is well wisher and next friend. All resident of village Dayalpur, P.S. Nalanda, P.O. Mirchaiganj, district : Nalanda at present 291, Sukhiya Road, 10 number Busti, P.O. Golmuri, P.S.: Sidagora, Distt.: Jamshedpur. 4. Lakhan Mahto @ Laxman Pd., son of late Raghunath Mahto 5. Parsuram Pd. , son of late Raghunath Mahto 6. Balram Pd. , son of late Raghunath Mahto 7. Raj Kumar, son of late Laxman Mahto 8. Krishnandan Prasad, son of late Laxman Mahto 9. Narendra Kumar, son of late Raj Kumar 10. Shivendra Kumar, son of late Raj kumar 11. Tarun Kumar, 12. Viku Kumar 11 & 12 are minor sons of Krshnandan Pd. who is under the guardianship of their natural father 13. Brij Nandan Pd., son of Ramchandra Pd. 14. Tinku Kumar, Minor son of Brijnandan Pd. who is under the Guardianship of his natural father. 15. Panni 16. Sammi 15 & 16 are minor sons of Permanand Prasad, who is under the guardianship of the natural father 17. Kapildeo Kumar, son of Balram Prasad 18. Arjun Kumar, son of Balram Prasad 19. Om Prakash, son of Balram Prasad 20. Narendra Kumar, son of Balram Prasad 21. Jageshwar Prasad, son of Shivram Mahto 22. Gora Prasad, son of Shivram Mahto 23. Banwari Prasad, son of Shivram Mahto 24. Murari Prasad, son of Shivram Mahto 25. Sadao Kumar, son of Jageshwar Prasad 26. Satish Kumar, son of Jageshwar Prasad 27. Manoj Kumar, son of Gora Prasad 28. Banti Kumar, son of Gora Prasad 29. Rajesh Kumar, son of Banwari Prasad 2 4 to 29 resident of village : Dayalpur, P.S. Nalanda, P.O.: Mirchayganj, District : Nalanda 30. Parmeshwar Mahto, son of Chamari Mahto 31. Radhey Prasad, son of Parmeshwar Mahto 32. Shyam Sundar Prasad, son of Parmeshwar Mahto 33. Mithilesh Kumar, son of Shyam Sundar Prasad 34. Satish Kumar, son of Shyam Sundar Prasad 35. Kameshwar Prasad @ Rameshwar Prasad, son of Chamari Mahto 30 to 35 are resident of village: Dayalpur, P.S. Nalanda, P.O. Mirchayganj, District : Nalanda Respondents ----------- P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the parties. This miscellaneous appeal has been filed against the order dated 20.11.2004, passed by 7th Sub- Judge, Nalanda at Biharshariff in T. S. No. 01 of 2004, by which he has allowed the petition under Order 43 Rule (1) for appointment of receiver. The plaintiffs/respondents filed a suit for partition with regard to the suit property to the extant of his 17 paise share. The suit filed on the ground that earlier a Partition Suit no. 31 of 1995 was filed but the property in present suit was not included in the said partition suit 31/95. The case of the plaintiff is that Chamari and Raghunath are full brother and descendant of common ancestor Sukhan Mahto and both acquired the property jointly. Chamari Mahto was the grand son of Shukan 3 Mahto. Raghunath Mahto and Chamari Mahto were the full brother, and both acquired the property jointly. One Rameshwar @ Kameshwar Mahto and Parmeshwar Mahto are the son of Chamari Mahto. Rameshwar @ Kameshwar Mahto was Assistant Foreman in Tata Steal Plant. The land was purchased in the name of Raghunath Mahto out of the income of the joint family property. The said disputed land 13 decimal originally belonged to Khoob Lal Mahto, Raja Mahto and Ramchandra Mahto was Junior Engineer and they sold the land to the defendant no.2, which was purchased in the name of Raghunath Mahto in the year 1964 and in the year 1991 heirs of Chamari Mahto got 6 ½ decimal and Raghunath got 6 ½ decimal after the death of Chamari Mahto, Rameshwar @ Kameshwar and Parmeshwar sold 6 ½ decimal of land by registered sale deed to the defendant no. 11, 12, and 13, and thereafter, Ragunath sold the said land to one Kailas Devi. However, taking into consideration the case of the respective parties that since the case is of partition and though the appointment of receiver is a matter of caution but taking into consideration it appears that the defendants taken illegal advantage and they wants to devoid the right, title and interest of the plaintiffs and hence the appointment of receiver appears to be proper and reasonable. Learned counsel for appellant however 4 contended that the learned court below while taking into consideration the facts regarding the appointment of receiver did not consider the fact that the defendants were in possession of the suit property and there was a partition and in the earlier partition this property was not subject matter for partition and there was no objection nor any attempt was made to include this property in the partition. It has further been contended that there is no averments, the property is being destroyed or exposed to eminent danger or there is any emergency of the suit property being destroyed, and hence, no grounds for appointment of the receiver has been made out for consideration to appoint a receiver. It has further been contended that in consequence of this order, subsequently, the court has ordered for appointment of an Advocate, as receiver to take possession of the property, and hence, it is contended that the order is not sustainable. Learned counsel for the respondent, however, contended that it is true that nothing has been taken into consideration but the interest of the plaintiff be also protected and the defendant may be directed to give the accounts about the earning from the said property. It has been asserted that the property is joint family property and the entire usufruct of the property is being released by the defendants and the plaintiff is devoid of any of the 5 fruits of the property, and hence, the question for consideration whether the impugned order is sustainable and whether the facts and circumstances of the case requires appointment of receiver. However, Order 40 Rule 1 provides for appointment of receiver and it has laid down principle for the same in terms that when it appears to the Court to be just and convenient, the Court may by order appoint a receiver of any property and remove any person from the possession and the custody of the property and committing the same to the possession and custody of receiver and give power for amendment, production and preservation. Section 40 Rule (1) provided that nothing shall authorize the court to remove from the possession or custody of the property any person. However, it is well established principle that the appointment of receiver is a mater resting in the discretion of the Court and the appointment of receiver is very stringent measure in which the possession of the person is to be disturbed. Here the property is in possession of the defendant and earlier in point of time, this property was not the subject in dispute and no attempts what so ever made to include this property indicates that this property even no averment that the property is being destroyed or expose to eminent danger. Hence, under the facts and circumstances, order of 6 appointment of Receiver is neither just nor correct. Hence, I am of considered opinion that order passed is not sustainable. However, taking into consideration the facts and circumstances, the case of the plaintiffs that this property was purchased by Chamari Mahto when the money was send by Kameshwar and the property was purchased in the name of Raghunath Mahto. However the plaintiff has said it a benami purchase. Moreover, in the earlier suit for partition in which the sister of the plaintiff were party but this property was not included in the said property for partition nor any petition rest nor any claim was made. There is no claim that the defendants have destroyed or demolished suit property. Hence, taking into consideration the facts and circumstances, there is no ingredient provided for appointment of receiver has been brought to the notice, and hence, I found hold that the impugned order is not sustainable, hence is set aside. Patna High Court Dated the 19th of November, 2010 NAFR/Ashwini (Gopal Prasad, J.)