IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1925 of 2008 1. Rajendra Prasad Singh adopted son of late Pancham Singh.(wrongly described as son of late Ram Kripal Singh). 2. Niranjan Prasad Singh @ Niranjan Singh 3. Narendra Prasad Singh 4. Sugendra Prasad Singh @ Sugendra Narayan Singh All sons of late Ram Kripal Singh, all residents of village Parasarma, P.O. and P.S. Supaul, District Supaul (wrongly described in the plaint as resident of village Manpur, P.O. and P.S. Gamaharia, District Madhepura). …..Defendant nos.1 to 4-Appellants-Applicants -Petitioners. Versus 1. Smt. Anita Singh daughter of late Ram Prasad Singh, wife of Sri Kishore Kumar Singh 2. Kishore Kumar Singh son of late Priyabart Narayan Sing, both resident of village Manpur, P.O. and P.S. Gamharia, District Madhepura. ...Plaintiffs-Respondents-Opposite parties-Opposite Parties. 3. Smt. Hirawati Devi daughter of late Ramkripal Singh, wife of late Suresh Prasad Singh, resident of village Sukhashan, P.O. and P.S. Sukhashan, District Madhepura. …Defendant-Respondent-Opposite party-Opposite party. For the petitioners : Mr. S.S. Dwivedi, Sr. Advocate with Mr. Jayant Kr. Sharan and Mr. Shailendra Kumar, Dwivedi, Advocates. For the opposite parties : M/s Arun Kr. Lal, Naresh Chandra Verma and Amardeep Lokpriya, Advocates. ----------- 08/ 19.11.2009 This civil revision has been filed by defendant nos.1 to 4- appellants-applicants-petitioners challenging order dated 26.08.2008 by which learned District Judge, Madhepura rejected their application for review of order dated 24.07.2004 by which Miscellaneous Appeal No.07 of 2003 was dismissed. 2. The matter arises out of Partition Suit No.82 of 2002 which was filed by opposite party nos.1 and 2 along with one Most. Sushila Devi ( now dead) for a decree of partition of the suit 2 properties detailed in Schedule-A of the plaint claiming moiety share and for other ancillary reliefs. It was claimed that the suit property was the joint family property belonging to the ancestor Ugra Narayan Singh, who had three sons out of whom Pancham Singh died issueless, whereas Ram Prasad Singh left behind a widow and a married daughter, who were plaintiffs, and Ram Kripal Singh left behind four sons and a daughter, who were the defendants in the suit. 3. The defendants appeared and contested the suit by filing written statement admitting that aforesaid Pancham Singh died issueless, but claimed that in his life time he had adopted defendant no.1 and the said adoption was regularised by his widow Raghubanshi Devi and hence defendant no.1 inherited the share of Late Pancham Singh. It was also claimed that by a previous partition between Ranghubanshi Devi W/o Pancham Singh on one hand and Ram Kripal Singh and others on the other hand all the joint family properties were partitioned by metes and bounds by way of family arrangement and a memorandum of partition was executed by them on 08.05.1970 and after partition Raghubanshi Devi re-united with the family of Ram Kripal Singh and after her death in the year 1972, her share devolved upon Ram Kripal Singh, who remained in possession thereof. 4. During the pendency of the said suit plaintiff no.2 filed an application on 28.02.2003 (Annexure-6) under Order XL Rule 1 of the Code of Civil Procedure (hereinafter referred to as „the 3 Code‟ for the sake of brevity) for appointment of Receiver alleging that in spite of unity of title and possession the defendants were not permitting the plaintiffs to enjoy the usufruct of the properties, which were being grabbed by them. 5. The defendants filed a rejoinder to the said interlocutory application claiming that there was no unity of title and possession between the parties in view of the partition which had had taken place in the year 1970, whereafter the plaintiffs had themselves executed several sale deeds admitting the factum of partition. It was also stated that no ground for appointment of Receiver was made out and there was no occasion for taking recourse to the remedy which is available only in the event of threat of loss of the lis itself. 6. Finally the learned Subordinate Judge-1, Madhepura allowed the said application of the plaintiffs vide his order dated 26.08.2003(Annexure-3) and appointed a local lawyer Mr. Dilip Kumar Verma as a Receiver permitting him to take remuneration of 15 per cent from the income of the properties as well as traveling allowance and directing that Rs.1,500.00 per month should be paid to plaintiff Anita Singh for maintenance, etc. 7. Against the aforesaid order of appointment of Receiver by the trial court, the defendants filed Miscellaneous Appeal No.07 of 2003 and after hearing the parties the learned District Judge, Madhepura dismissed the said miscellaneous appeal vide order dated 24.07.2004(Annexure-4) holding that at this stage it 4 cannot be said that there was an earlier partition between the parties and that in a partition suit when one co-owner occupies the whole properties and excludes other co-owners from their share, a case of appointment of Receiver is made out in spite of the fact that waste or mismanagement by other co-owner in possession was proved. It was also held that the appointment of Receiver was a matter of discretion of the court and the limit of discretion cannot be defined. 8. Against the said order of the learned District Judge, Madhepura the defendants filed C.R. No.1062 of 2004 but the same was dismissed as withdrawn by this court vide order dated 11.03.2005 (Annexure-5) allowing the prayer of the revision petitioners to withdraw the revision petition to enable them to file an application before the learned lower appellate court for review of the order by which the miscellaneous appeal was dismissed. 9. After the aforesaid permission from this court the defendants-petitioners filed an application under Order XLVII Rule 1 of the Code for review of the earlier order dated 24.07.2004 (Annexure-4) by which the learned District Judge, Madhepura had dismissed Miscellaneous Appeal No.07 of 2003, claiming that there was an error apparent on the face of the record in the aforesaid appellate order. 10. The said application for review was heard and rejected by the learned District Judge, Madhepura vide his order dated 26.08.2008 holding that the learned trial court as well as the 5 appellate court while hearing miscellaneous appeal against the appointment of Receiver had held that there was no prima-facie case to prove the previous partition and one of the parties was deprived from the usufruct of the joint family properties, hence the appointment of Receiver was a must. Thus it was held that there was no error apparent on the face of the record which could vitiate the earlier appellate order. The said order of the lower appellate court dated 26.08.2008 is under challenge in the instant civil revision. 11. Learned counsel for the petitioners has argued that the learned courts below did not at all consider the requirements on the basis of which a Receiver can be appointed and they had passed the impugned order merely on the presumption that the plaintiffs‟ claim of no earlier partition was correct and the income from the suit properties was being wasted by the defendants. It was also claimed that the learned courts below did not at all consider Annexure-2 and Annexure-2/A produced by the defendants-petitioners in the learned court below which clearly proved that there was a partition between two branches of the family and hence there was no occasion for appointment of any Receiver. 12. Learned counsel for the defendants-petitioners further stated that the learned courts below had allowed payment of Rs.1,500.00 per month to the plaintiff Smt. Anita Devi for her maintenance failing to appreciate that the plaintiffs themselves did 6 not make any such claim before the learned courts below which is apparent from their application for appointment of Receiver dated 28.02.2003 (Annexure-6). He also averred that appointment of an outsider as a Receiver in a partition suit and that too on remuneration was absolutely illegal and against the specific provisions of law. In this regard learned counsel for the defendants-petitioners relies upon several decisions of the Hon‟ble Apex Court as well as of this court, namely, AIR 2004 SC 1738 (M/s Green View Tea and Industries vs. Collector, Golaghat, Assam and another), AIR 2005 SC 592 (Board of Control for Cricket, India and another vs. Netaji Cricket Club and others) and 2007 (3) PLJR 417 (Vijai Kumar vs. Smt. Kiran Devi & Ors.). 13. On the other hand, learned counsel for the opposite parties argued that the instant civil revision is not maintainable as the petitioners have challenged only the order in review matter and not the earlier order by which the miscellaneous appeal was dismissed at the first instance. It was also claimed that the doctrine of merger will not be applicable to the facts and circumstances of the case and hence the original order still stands. In this regard, he relied upon two decisions of the Hon‟ble Apex Court, namely AIR 2007 SC 1185 (Kumaran Silk Trade (P.) Ltd. vs. Devendra & Ors.) and AIR 2008 SC 429 (Manohar Shankar Nale & Ors. vs. Jaipalsing Shivlalsing Rajput & Ors.). 14. Learned counsel for the plaintiffs-opposite parties further stated that the learned District Judge, Madhepura has 7 considered the issues involved in the matter in detail and only thereafter he has passed the impugned order which is legal, valid and proper as there is no error apparent on the face of the record as all the ingredients for appointment of Receiver were present in the case, specially when the suit property was joint family property, but in spite of that the plaintiffs-opposite parties were deprived of the usufruct received from it. 15. So far the questions of maintainability of the civil revision and the doctrine of merger are concerned, the opposite parties have relied upon a decision of the Hon‟ble Apex Court in case of Manohar Shankar Nale (supra), but the said order was passed in a completely different situation when the regular civil suit was dismissed in the year 1968 whereafter the title appeal was also dismissed, but in the second appeal the High Court set aside the judgments and decree of the leaned courts below and decreed the suit with regard to the suit property and also for mesne profit from the date of the suit till the actual delivery of possession. Against the said judgment of the High Court, an application for review was filed which was dismissed vide order dated 12.08.1985. Hon‟ble Apex Court while allowing the civil appeal against order of the High Court held that order of stay passed by the High Court before its initial judgment allowing the second appeal would not be deemed to have continued thereafter in view of the proceeding and order in the review matter when no order of stay was passed during the review proceeding. In those 8 circumstances, it was held that the doctrine of merger would have no application, but here the matter is completely different as there is no question of any interim order of stay etc. 16. The other decision in case of Kumaran Silk Trade (P.)Ltd. (supra) cited by learned counsel for the opposite parties, was also passed in a completely different situation when against the original order of the High Court, S.L.P. was filed which was dismissed by the Hon‟ble Apex Court without giving any liberty to the petitioner to file an application in the High Court for seeking review of the impugned order, but in spite of that an application for review was filed in the High Court and after its dismissal another SLP was filed in the Hon‟ble Supreme Court. In the aforesaid circumstances and also taking into account the aforesaid conduct of the said petitioner in the Hon‟ble Apex Court it was held that the said SLP was not maintainable against the order by which an illegal and frivolous application for review was dismissed. 17. It is thus apparent that both the decisions of the Hon‟ble Apex Court cited by the opposite parties are not applicable to the facts and circumstances of the instant case in which the miscellaneous appeal having been initially dismissed, a civil revision was filed in the High Court which was withdrawn by the petitioners for filing an application for review in the learned court below, to which the plaintiffs-opposite parties had specifically said that they had no objection. Only thereafter an 9 application for review was filed by the defendants-petitioners and thus it was quite legal and maintainable, specially in view of a decision of this court reported in 2005 (4) PLJR 87 (Suresh Yadav vs. Ram Chandra Yadav) in which it was held that in such cases doctrine of merger would be applicable and the impugned order would merge in the original order passed by the learned court below. A reference in this regard may also be made to a decision of the Hon‟ble Apex Court in case of Board of Control for Cricket India (supra). In these circumstances it is quite clear that the said objection raised by the opposite parties regarding maintainability of the civil revision is absolutely frivolous and misconceived and is also against the settled principle of law. 18. So far the other question involved in this case regarding error apparent on the face of record is concerned, it is quite apparent that the genealogy of the family is admitted and it is also admitted that out of the three brothers Pancham Singh had died earlier, whereas the heirs of the remaining two brothers are plaintiffs and defendants, respectively and out of them plaintiffs are claiming their moiety share in the suit properties. The point in dispute is that the plaintiffs claimed that there was no partition in the family whereas the defendants claimed that there was a partition between the said branches in the year 1972. In support of their claim, the defendants had produced Annexure-2 and Annexure-2/A, which were registered deeds of transfer by the daughter of one of the brothers Ram Prasad Singh, namely Anita 10 Singh who was herself one of the plaintiffs and the said sale deeds were based upon a previous partition. In the said circumstances when there was a prima-facie case of earlier partition there was legally no occasion for the court to appoint a Receiver. 19. Furthermore the appointment of Receiver clearly meant divesting the defendants of their admitted possession which could have been taken only in an extreme case when there was any threat of loss of the lis itself, but here in the instant case there was absolutely no allegation that the suit properties or the lis itself were being wasted or dissipated or that there was any likelihood of the properties being lost for ever. The only claim of the plaintiffs was that the defendants were in possession and were usurping the usufruct of the property, whereas the defendants specifically claimed on the basis of documents produced that they were in possession of the suit premises as its rightful owner and hence they had full right to utilize the usufruct of the suit property according to their own requirements. 20. In a similar circumstance, this court in its decision in case of Vijai Kumar vs. Smt. Kiran Devi and others, reported in 2007 (3) PLJR 417 had specifically held as follows:- “The law is well settled that the court considering the matter of receivership is exercising an equity jurisdiction and in such cases, the discretion of the court should not be arbitrary or absolute, rather it should be a sound and judicial discretion taking into account all the circumstances of the case, exercised for the purpose of permitting the ends of justice and protecting the rights of the parties and the subject matter of the suit and also when there is no other adequate remedy or means 11 of accomplishing the desired objects of the judicial proceeding. The appointment of Receiver cannot be legally equated with the issuance of an order of injunction. For an order of injunction prima facie case has to be shown, but in case of appointment of Receiver a prima facie case would not be sufficient, rather the plaintiff has to show that he has a very excellent chance of succeeding in the suit without which no order of appointment of Receiver can be passed. Merely showing a case of adverse and conflicting claims to property will not suffice, rather the plaintiff has to show some emergency or danger demanding immediate action. In such a case the right of plaintiff must be reasonably clear and free from any doubt and in addition to that the element of danger to the suit property is very important in such matters and the court should appoint a Receiver only when there is a great and imminent danger demanding immediate relief. If a Receiver is appointed with respect to a property in which the defendant has a de facto possession, it would naturally amount to deprive the defendant from his right which might cause irreparable wrong. Hence in case of title only the court should be very reluctant to disturb possession of a party by appointment of a Receiver. Receiver can be appointed only when the property is exposed to imminent danger and emergency and the person in possession has obtained it through fraud or force requiring interposition by Receiver for the security of the property. A Receiver should not be appointed in supersession of a bona fide possessor of property in controversy and bonafides of possessor have to be presumed until the contrary is established.” 21. The above ingredients are basic principles for appointment of a Receiver as has been held by several decisions of the Hon‟ble Apex Court as well as different High Courts, including Patna High Court in case of Vijai Kumar vs. Smt. Kiran Devi and others, reported in 2007(3) PLJR 417. 12 22. From the facts and circumstances of this case and from the orders passed in the miscellaneous appeal as well as in the title suit, it is quite apparent that the aforesaid settled basic principles of law have been completely ignored and the said orders have been passed illegally and whimsically without any basis, so much so that the courts while appointing an advocate, who was stranger to the family of the parties and unconcerned with the property, did not even realize that it amounts to depriving the defendants from his admitted possession on the basis of an earlier partition between the branches of the family proved by documentary evidence. Hence the bonafides of the said possessor has to be presumed until the controversy is finally established. This aspect of the matter has been overlooked by the learned courts below. 23. Furthermore even according to the plaintiffs‟ claim the defendants were usurping only the usufruct of the suit properties, but they never claimed that there was any threat of loss to the lis itself, hence in such cases there was no occasion for appointment of any Receiver, specially when the right of the plaintiffs was not yet clear or free of any doubt in view of the pleadings and evidence of the defendants, which has to be finally decided in the suit and hence the plaintiffs cannot be said to have at this stage a very excellent chance of success. This aspect of the matter has also been overlooked by the learned courts below. 24. It also transpires from the pleadings of the parties that the plaintiffs absolutely failed to show any imminent danger to the 13 suit property or any other emergency prescribed in law requiring appointment of Receiver, nor it is claimed that defendants had obtained possession by fraud or force requiring interposition by Receiver for security of the suit property. Hence there was no occasion to take such extreme measure of appointment of Receiver, specially when there are other remedies available to the plaintiffs, such as injunction, mesne profits etc. in case they succeed in proving their claim. 25. Apart from the above the courts below have also gone to the extent of allowing maintenance of Rs.1,500.00 per month for one of the plaintiffs without even the plaintiffs being entitled to it at this stage and without the plaintiffs ever claiming such maintenance anywhere either in the trial court or before the lower appellate court, as well as in their application for appointment of Receiver dated 28.02.2003 (Annexure-6). 26. Such mistakes on the part of the courts are very grave errors of law which are apparent from the materials on records itself. In the said circumstances the word “Sufficient Reason” used in Rule 1 of Order XLVII of the Code is wide enough to include such misconception of law and fact by the court and hence the doctrine “Actus Curiae Neminem Gravabit” has to be invoked. 27. The cumulative effect of the aforesaid discussion is that this court is satisfied that the learned District Judge, Madhepura passed his impugned order dated 26.08.2008 illegally and with material irregularity and has wrongly refused to exercise the 14 specific jurisdiction of review vested in him by law and in the aforesaid facts and circumstances of this case Miscellaneous Appeal No.07 of 2003 should have been allowed setting aside the order of the trial court dated 26.08.2003 by which receiver was appointed in Title Suit No.82 of 2002. 28. In the said circumstances the impugned order dated 26.08.2008 rejecting the application for review in Miscellaneous Appeal No.07 of 2003 is hereby set aside, order dated 24.07.2004 passed by the learned District Judge, Madhepura in Miscellaneous Appeal No.07 of 2003 is reviewed and Miscellaneous Appeal No.07 of 2003 is allowed, setting aside order dated 26.08.2003 passed by the learned Subordinate Judge-I, Madhepura in Title Suit No.82 of 2002. 29. Accordingly this civil revision is allowed with a direction to the learned trial court, namely the learned Subordinate Judge, Madhepura to reconsider the application of the plaintiffs for appointment of Receiver along with the objection raised by the defendants and decide the said matter afresh on the basis of the pleadings and materials as well as the specific provisions and the settled principles of law in that regard mentioned above, within two months from the date of receipt/production of a copy of this order. harish/A.F.R ( S. N. Hussain, J. )