IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.600 of 2009 1. AMRIT MAHTO, S/O Late Gugal Mahto. 2. Bulaki Mahto, S/O Late Gugal Mahto. 3. Mathura Mahto, S/O. Late Gugal Mahto. 4. Baleshwar Mahto, S/O. Late Sarlu Mahto. 5. Tookan Mahto, S/O. Late Sarlu Mahto. 6. Bhim Mahto, S/O. Late Pokhan Mahto. 7. Dulehswar Mahto, S/O. Late Pipan Mahto. 8. Manwa Devi, D/O Late Maharaj Mahto. All resident of village Partapur, P.S. – Chakai, District – Jamui. ………… Defendants Ist Party, Appellants. Versus 1. PURAN MAHTO, S/O. Bansi Mahto. 2. Talo Mahto, S/O. Bansi Mahto. 3. Devi Mahto, S/O. Bansi Mahto. 4. Bangtu Mahto, S/O. Puran Mahto. All resident of village Partapur, P.S. – Chakai, District – Jamui. ………… Plaintiffs, Respondents Ist Set. 5. Dasrath Mahto, S/O. Late Piyari Mahto. 6. Turi Mahto, S/O. Late Anup Mahto. Both resident of village Partapur, P.S. – Chakai, District – Jamui. ……. Defendant IInd Party, Respondents IInd Set. ----------- 07/ 23.09.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the order dated 20.08.2009 passed by Sub-Judge Ist, Jamui in Title Suit No. 68 of 2009 by which a petition for appointment of receiver under Order XL Rule 1 and 2 of the Code of Civil Procedure filed on behalf of the plaintiffs has been allowed and one Nand Kishore Chaudhary, Advocate is appointed as receiver for taking 2 care of the suit property with a direction that he will give the accounts of the income and expenses in the court at every six months. The defendants are the appellants. The fact of the case in narrow matrix is that the plaintiffs filed a suit for partition claiming his half share in the property described in Schedule A in the plaint. Further case is that since the suit property has not been partitioned scientifically and the parties are in possession according to the convenience and suit property be partitioned and the case of the plaintiffs that one Dallu Mahto had three sons Lakhu Mahto, Meghu Mahton and Santokhi Mahto and the plaintiffs are the heirs of Santokhi Mahto and the defendants are the descendants Meghu and Lakhu Mahto died issueless. However, the case of the defendant is that Dallu Mahto had six sons. Though the plaintiffs are the descendants of one of the sons of Santokhi and the defendants are the descendants of one of the son Maghu Mahto and further case of the defendants is that there was partition of property by metes and bounds and the land of Khata No. 15 allotted to the share of Santokhi and land of Khata No. 14 allotted to the share of Meghu and Lakhu 3 and since Rohan son of Lakhu executed a sale deed in the year 1918 in favour of son of Meghu with regard to his share of land 1.78 acres which was never challenged by plaintiff or their predecessor and hence suit not maintainable. However, in the suit a petition under Order XL was filed on behalf of the plaintiffs for appointment of receiver on the ground that the defendants have become furious and anguish with the plaintiffs after having learnt about the institution of the partition suit and is threatening to dispossess the plaintiffs from the suit land and have been intending to alienate the suit land illegally in order to multiply the litigation and the plaintiffs being the descendants of the common ancestor of Khatiyani Raiyat are equally entitled to occupy and exercise their possession and hence the plaintiffs have got a prima facie case and balance of convenience and equity lies in their favour and hence to protect, preserve and maintain the status quo, it is just and convenient to appoint a receiver by the court to take care of the suit property, which is the land of plot nos. 291, 292 and 588 in view of the fact that the defendants have earlier prior to the institution of the 4 suit had alienated some property. The defendants appeared and filed the rejoinder that the plaintiffs have claimed half share, whereas there is no share of the plaintiffs and land of Khata No. 11 recorded in the name of Lakhu Mahto, Maghu and Santokhi having an area of 8.9 acres and there are three shares but in possession column only name of Lakhu and Maghu shown in possession, though Santokhi is not shown. Lakhu Mahto died leaving behind his son Rohan Mahto, who executed sale deed in 1918 in favour of son of Meghu Mahto and hence the petition for appointment of receiver is mala fide and stated that the claim of the plaintiffs false has got neither possession nor title over the suit property. On considering the petition under Order XL and the rejoinder and after hearing the submission of the parties the trial court by the impugned order allowed the petition for appointment of receiver as above mentioned on the ground that since the case of the plaintiff’s relates with the land of Khata No. 14 on ground that Lakhu being bother of plaintiff died issueless. So the plaintiffs entitled to share out of property of Lakhu and since the plaintiffs 5 are entitled get a share so there is a prima facie case for appointment of receiver for the protection of the suit property in favour of the plaintiffs as the allegation that before filing the partition suit defendants have sold some portion of the joint property without partition and permission of plaintiffs and hence if the appointment of receiver is not allowed then it will cause irreparable loss and so held that it will be proper to appoint a receiver to protect and maintain the status quo for the ends of justice and hold that it is convenient and just to appoint a receiver and hence appointed Nand Kishore Choudhary, an advocate as receiver. Learned counsel for the appellants, however, contended that the appointment of receiver is a very harsh measure and the ground made out that prior to the filing of the suit the defendants have sold some land. However, there is neither any specific mention the date and time of sale nor the specification of land and whatever allegation made about the sale or allegation about threat is quite vague and not specific to given an effective reply. It has further been contended that there is no allegation whatsoever that there is any emergency or imminent 6 danger or loss to the property and further by the said order the possession of the plaintiffs having been disturbed and it is not proper that in a partition suit the party in possession be disturbed, even if a party is in possession of an area succeeding his share, the case of the plaintiffs and prima facie case, balance of convenience and irreparable loss is not a consideration for appointment of receivership but the consideration is whether it is just and convenient for appointment of receiver and the plaintiffs must have every probability to succeed in the case but in a case of suit for partition, when the parties are in possession in exercise of their rights order of appointment of receiver is neither just nor convenient and has relied upon decision reported in 2007 (3) PLJR 417 (Vijai Kumar Vs. Smt. Kiran Devi & Ors.). However, learned counsel for the plaintiffs- respondents contended that the defendants threatened to throw him out of the village and so he filed a petition. However, revealed that the receiver appointed by the court come in possession of the property as receiver and remain in possession for about a year but did not give him the produce of his share and so demands to change the 7 receiver. However, the operation of the order for the time being is under stayed by order of this Court till the pendency of the appeal. Hence on the respective submission of the parties the question for consideration is whether the impugned order appointing a receiver on ground of the vague allegation of threat is sustainable. However, Order XL of the Code of Civil Procedure provides that where it appears to the court to be just and convenient the court may order appointment of receiver of any property and hence the principle governing the appointment of receiver is not whether there is a prima facie case, balance of convenience and irreparable loss. However, those are the principles enunciated for granting injunction. In decision reported in 2000 (2) BBCJ V-157 (Sheoji Singh Vs. Brijbansh Singh & Ors.) it has further been held that in a suit for partition a co-sharer might be in possession of more than his share but by that alone he cannot be ousted from the same by appointment of receiver. In decision reported in 2007 (3) 417 (Vijay 8 Kumar Vs. Smt. Kiran Devi & Ors.) after considered and decision reported in AIR 1955 Madras page 430, considered the principle laid down as ‘Punch Sadachar’ i.e. five principles for considering for appointment of receiver and the five principles are enumerated as :- (a) The discretion of the Court (b) The plaintiff has very excellent chance of succeeding in the suit (c) The plaintiff must show emergency or danger or loss of property demanding immediate action. (d) The receiver should not be appointed when it affects or deprive the defendant from his defacto possession. (e) The conduct of the parties. And further considered various decisions for formulating the principles that if the applicant does not establish a special equity in his favour it is impossible to say that it is just and convenient for an order to appoint a receiver. It has further been well settled that the appointment of receiver is a very harsh measure even much harsher than order of injunction as in a case of 9 injunction the party remains in possession with a restriction as imposed by the court, but in a case of receiver a party has to give possession of a property to the receiver as appointed by court and hence is ousted from the possession which have a serious consequence and even loss of earning from the said property and further appointment of receiver if made then the party has also meet the cost for the appointment of receiver, which is an extra burden on the party and which has the possibility of loss and waste of the income and hence the appointment of receiver is a very stringent matter and it becomes more stringent in partition suit when the party is in possession in exercise of his right hence the exercise of the power of appointment of receiver need to be on sound reasoning to suggest that the order of appointment of receiver is just and convenient to the party and to have been exercised judiciously. However, coming to the fact and circumstance of the present case the suit is for partition and case of the plaintiffs that though the parties are descendants of common ancestor as one Dallu had three sons. Plaintiffs are the descendant of one of the son of Santhokhi and the 10 defendants are the descendants of one of the son of Meghu and one of the son Lakhu had been died issueless and so the suit property which is joint be partitioned but the parties are in possession as per their convenience and there is allegation that defendants are threatening to dispossess the plaintiffs forcibly out of village and exercising their control. However, the allegation are mere threat and the assertion that both the parties are in possession according to their share as per convenience and hence dispossessing a party by the appointment of receiver is to dispossess a person from land from which he is in possession as a co- share is neither just nor convenient when there is neither any allegation that the suit property is being destroyed or be damaged or there is no allegation of any imminent danger on the suit property in possession of the plaintiff and if there is no imminent danger to the suit property in possession of plaintiff. The order of appointment of receiver is neither just nor convenient mode to disturb the possession and further the appointment of respondent shall also have to meet the expenses and in no fit to disturb the possession and the fact alleged does not make out a ground for appointment of receiver and the appointment of 11 receiver is neither just nor convenient as neither the plaintiffs nor the defendants are benefited by the impugned order as both have to lose the possession. It is well settled that in a case of suit for partition the order of appointment of receiver even if a party is in possession of a property in excess to his share is neither just nor convenient and hence the order of appointment of receiver disturbing the possession of the appellant on vague and imaginary grounds of a threat of alienating or dispossessing the plaintiff is neither just nor convenient to sustain in Law or fact. Hence, the impugned order i.e. the order of appointment of receiver in the fact and circumstance is not sustainable in law and it is set aside and the miscellaneous appeal is allowed. Kundan (Gopal Prasad, J.)