IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.666 of 2010 1. PRASIDH NARAYAN VERMA @ DEEPAK KUMAR VERMA, S/O SHREEKANT VERMA 2. ANANYA VERMA (MINOR), D/O PRASIDH NARAYAN VERMA AND UNDER THE GUARDIANSHIP OF FATHER PRASIDH NARAYAN VERMA BOTH RESIDENTS OF RAJEEV NAGAR, P.O. & P.S. DIGHA, DISTRICT PATNA .. PLAINTIFFS/APPELLANTS Versus 1. SHREEKANT VERMA. S/O LATE TILAKDHARI VERMA 2. GOPAL PRASAD VERMA 3. MANISH KUMAR VERMA BOTH 2 AND 3 ARE SONS OF SHREEKANT VERMA (DEFENDANT NO. 1) 4. NAMAN KUMAR (MINOR) S/O GOPAL PRASAD VERMA AND UNDER THE GUARDIANSHIP OF FTHER GOPAL PRASAD VERMA 5. KAMAL KUMAR VERMA (MINOR) D/O GOPAL PRASAD VERMA AND UNDER THE GUARDIANSHIP OF FATHER GOPAL PRASAD VERMA 6. SMT. PRAMILA DEVI W/O CHOTAN SAON, R/O JAKKANPUR, P.O. & P.S. JAKKANPUR, DISTRICT PATNA DEFENDANTS/RESPONDENTS 1 TO 5 ARE RESIDENTS OF KAPILA SADAN RAJEEV NAGAR, P.O. & P.S. DIGHA, DISTRICT PATNA .. DEFENDANT/RESPONDENTS **** /2/ 31 August 2010 Heard learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 20.05.2010, passed by Sub Judge, I, Patna, in T.S. No. 438 of 2006 by which he has rejected the petition under Order XL Rule 1 of the Civil Procedure Code for appointment of receiver. From the order sheets, itself, it 2 appears that the plaintiffs filed a suit for partition that one Tilak Dhari Verma is the common ancestor of the plaintiffs and defendant no. 5 and defendant no. 1 is son of Tilak Dhari Verma and has three sons, but, plaintiff no. 1 and defendants no. 2 and 3 and the property detailed in Schedule ‘A’ of the plaint was inherited from the grandfather whereas the other property acquired by the income of the joint family and further that Tilak Dhari Verma purchased land in the name of defendant no. 1 and constructed the house and plaintiffs also claimed that they have also contributed, but, taking advantage of the fact that the land is in the name of defendant no. 1 created a sale deed in favour of defendant no. 6. It has been asserted that said house is a valuable property with tenant fetching rent to the extent of Rs.15,000/-. 3. The case of the defendants is that defendant no. 1 purchased the land in the year 1951 from one Raghunandan Prasad and Jugeshwar Prasad and since the date of purchase he is in exclusive possession which was mutated in Government Sherishta and defendant no. 6 has purchased the land by registered sale deed executed by 3 defendant no. 1. 4. In the said suit a petition for appointment of receiver has been filed under Order XL Rules 1 and 2 of the Civil Procedure Code. 5. However, the grounds made out for appointment of receiver is that the plaintiffs is devoid of his alleged share from the property and suit is for declaration of his house hold share and he is not party of the settlement of the issue and the learned lower Court after considering the respective submissions of the parties held that it is neither just nor convenient to appoint a receiver in the suit. Being aggrieved with the impugned order the appeal has been filed. 6. The learned counsel for the appellants, however, contended that the property was purchased by Tilak Dhari Verma in the nameof defendant no. 1, i.e., to take the plea of benami and claimed his 1/4th share. However, admittedly, the property has been sold and is in possession of defendant no. 6 duly executed by the sale deed and the stand of defendant no. 1 that it is his self acquired property which he has sold. 4 7. Now for the question for consideration whether it is just and convenient to appoint a receiver. 8. However, the suit is for partition and case of plaintiffs is that the suit is joint property as purchased by Tilak Dhari Verma, the grand father, in the name of the father of the plaintiffs and, hence, creating a case that the purchase was benami or purchase out of joint family fund, but, there is no such pleadings whereas the case of defendants that it is self acquired property of defendant no. 1. However, even assuming that property is joint it is not in possession of the appellants. 9. However, there is no allegation that the property has been destroyed or is diminished in valuation, however, the only allegation that the plaintiffs are not getting his share of rent which is being realized as rent from the said house. However, a petition has been filed by the appellants that respondents be compelled to give the account of the accounts and the rent, but, only for asking to give an account the appointment of receiver is neither just nor proper and further appointment of receiver is harsh measure in which the possession of the property is to be delivered 5 from the person in possession of the suit unless it is very fair chance of succeeding is made out and particularly in a suit for partition when the plaintiffs is only claiming 1/4th share, when he is not in possession and suit property sold is in possession of defendant no. 6, hence, the order for appointment for receiver is neither just nor proper to appoint a receiver. There is no allegation at all of destruction or demolition the valuation of the property and, hence, I do not find any merit in the Miscellaneous Appeal. 10. The Miscellaneous Appeal is dismissed. 11. However, the appellants may take steps in the lower Court for asserting the rent realized by defendant no. 6. Cp:2/S.A. ( Gopal Prasad, J. )