THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.M.A.NO.454 OF 2007 JUDGMENT Heard both the counsel. 2. The appellant herein filed the suit in O.S.No.15/2006 on the file of Senior Civil Judge, Machilipatnam against the respondents, who are his father, brother and sisters, seeking partition of suit schedule property into file equal shares and allot one such share with separate possession. In the said suit, the petitioner filed the present petition in I.A.No.90/2006 seeking appointment of a receiver to take possession of A, B and C schedule properties, to auction the lease hold rights and realize income thereon and to deposit the same into court to the credit of the suit and further to direct the respondents/defendants 7 and 8 to deposit annual makta pending disposal of the suit. 3. By the impugned order dated 23.1.2007, the court below dismissed the I.A.No.90/2006 in O.S.No.15/2006 and thereby rejected to appoint a receiver. Aggrieved by the same, the plaintiff/appellant filed the present appeal. 4. The respondent no.1 is the father of the appellant and respondent no.2 is his brother and respondents 3 to 5 are the daughters of respondent no.1 and sisters of the appellant and respondent no.2. The mother of the appellant died about 30 years back and his father i.e., respondent no.1 married the respondent no.6 and there are no issues through respondent no.6. Items B and C of the suit schedule properties were leased out to respondents 7 and 8. 5. Now the case of the appellant is that item no.1 of the plaint A schedule property is the ancestral property and out of the income derived therefrom and also with the joint business carried by the appellant and defendants no.1 and 2 as joint family business under the name and style of “Mallaiah Sweets” and with the income derive thereon, the joint family purchased items 2 to 6 of suit A schedule and B and C schedule properties. His further case is that respondent no. 3 was married to one B.Venkat Rao in the year 1981 and hence appellant and respondents 1, 2, 4 and 5 are alone entitled for equal share in the plaint schedule properties. On 19.11.2005 as the respondents 1 and 2 tried to dispossess him illegally from the item no.5 of the suit A schedule property, wherein he is running his separate and exclusive business under the name of “Sai Vivekananda Sweets”, he filed the suit in O.S.No.967/2005 on the file of I Additional Junior Civil Judge, Machilipatnam for permanent injunction and the same is pending. As disputes arose between them and as the 2nd respondent with evil motive to grab the entire joint family properties, is trying to evict him from item no.5 of the suit schedule properties, he demanded for partition and as the same was denied, he filed the suit. It is his case that item nos.1 to 6 of A schedule properties fetches monthly rents of Rs.1,000/-, Rs.8,500/-, Rs.500/-, Rs.500/-, Rs.1,500/- and Rs.3,000/- respectively i.e., in all Rs.1,80,000/- per year and B and C schedule properties i.e. Acs.6-54 cents fetches Rs.58,500/- per year and they were leased out to respondents 7 and 8. As the respondents 1 and 2 are appropriating the income derived therefrom without accounting for the same and without giving the due share of the appellant, he field the present petition for appointment of a receiver. 6. The 2nd respondent filed counter and while admitting the relationship between the parties, mainly stated inter alia that the suit schedule properties are the self acquired properties of the respondent no.1 and that they are not the ancestral properties and that there is no joint family business between the appellant and respondents 1 and 2. Further referring the various gift deeds executed by the 1st respondent in his favour and also in favour of other family members, including the appellant, stated that as the appellant failed to point out any grounds for appointment of a receiver, sought for dismissal of the petition. 7. The court below after framing appropriate issues, holding that as the petitioner failed to show that the suit schedule properties are being mismanaged or there is some apprehension of loss or danger to the suit schedule properties and as the appellant also sought for mesne profits and as there is no evidence with regard to the income derived from the suit schedule properties, dismissed the petition. The court also noted that the interim injunction restraining the respondents from alienating the suit schedule properties was also granted. With these findings, the court below dismissed the petition seeking for appointment of a receiver. 8. The learned counsel for the appellant contended that the suit schedule properties are the joint family propeirtes. He contended that the item no.1 of the A schedule property is the ancestral property and out of the income derived therefrom and with the joint family business, item nos.2 to 6 of A schedule property and B and C schedule properties were purchased. He stated that Ex.A-2 is the relinquishment deed and it clearly shows that all the suit schedule properties are the joint family properties and 4/5th share i.e., 1/5th share each of the respondents 1 to 4 were relinquished in respect of property under Ex.A-2 in favour of the appellant, which clearly shows that the suit schedule properties are treated as joint family properties. He further stated that even item no.1 of the A schedule property under Ex.A-1 is admittedly an ancestral property. These documents clearly prove that the suit schedule properties are the ancestral properties. He stated that the respondents 1 and 2 are appropriating the income derived therefrom without giving the due share of the appellant and, therefore he sought for appointment of receiver for taking possession of the properties and deposit the income derived, to the credit of the suit. He contended that Exs.A-1 and A-2 clearly show that the suit schedule properties are the joint family properties and based on these documents it is clear that appellant has good prima facie case and mere non showing of proof of waste or mismanagement, may not be sufficient to deny the appointment of a receiver. As the appellant has good case, the court below ought to have appointed a receiver. In support of his contention, he relied n the judgment of the Patna High Court in KAMAL v. RAJENDRA[1]. Relying on the judgment of the Division Bench of this court in CH.RAJAMMA vs. P.V.REDDY[2], he contended that as the appellant has prima facie fair chance to succeed in the suit, the court below ought to have given directions to deposit certain amount into the court till the disposal of the suit. 9. On the other hand the learned counsel appearing for the respondent – supporting the impugned order, sought for dismissal of the appeal. 10. In view of the above rival contentions, the point that arises for my considering is whether the impugned order needs to be interfered with? 11. From the material on record, it could be seen that there is no dispute with regard to the relationship between the parties and the dispute is only with regard to the status of the property. The case of the appellant is that the suit schedule properties are the joint family properties and on the contrary the case of the respondent no.1, who filed counter, which is adopted by other respondents, is that the suit schedule properties are not the joint family properties and they are the self acquired properties of the respondent no.1, who is their father. Both the parties relied on certain recitals in the documents filed on either side. But a finding whether the suit schedule properties are the joint family properties or the self acquired properties is to be recorded and the same is possible only after completion of trial and at the interlocutory stage no finding cannot be recorded based on insufficient evidence. In the decisions relied on by the counsel for the appellant cited 1 and 2 supra, there is no dispute that the suit schedule property was the joint family property. Therefore, in those circumstances, the order was made directing appointment of a receiver, taking the prima facie case and fair chance of success. But in the present case, as noted, there is any amount of dispute with regard to the status of the property. Therefore, the directions in those cases cannot be granted in this case. The Division Bench of this court in Chelikam Rajamma’s case (2 supra) considering Order 40 and Rule 1 of C.P.C. and on an analysis of the case law laid down in different cases, laid down the following guidelines with regard to appointment of receivers in a suit for partition: “11. From an analysis of Order 40, Rule 1 of the Code of Civil Procedure in the light of the case law in relation to partition suits, the following propositions may be deducted: (1)The appointment of receiver cannot be resorted to lightly without considering the entire facts and circumstances. (2)The party seeking the appointment of receiver must point out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to the inference of incompetence. (3)If, prima facie, the plaintiff has excellent chance of succeeding in the suit, there being no denial with regard to his or her share in the plaint schedule properties, the conduct of the opposite party in keeping the plaintiff out of possession will be a relevant consideration for directing the opposite party to deposit a sum of money approximately representing the value of the yield pertaining to the share of the plaintiff pending disposal of the suit. Even in such circumstances, a receiver should not be appointed to oust the possession of the opposite party from the joint family properties. The protection of the properties and safeguarding of the rights of the parties shall be the twin objectives impelling the appointment of receiver.” 12. From a reading of the above it could be seen that for appointment of a receiver the party who is seeking such appointment must prove that he is kept out of possession of the jointly family properties unauthorisedly and that the party in possession is indulging in acts of waste, thus making the property incapable of use and further that he shall have an excellent chance of succeeding in the suit and that there shall not be any denial with regard to his share. In the present case, as already noted above, there is any amount of dispute with regard to the nature of the property, since as per the case of the appellant, the property is joint family property and on the other hand, the case of the respondent no.2 is that the suit schedule properties are the self acquired properties of respondent no.1. Therefore, it cannot be said that the share of the appellant is not denied by the respondents. Further, the plaintiff has also not shown any acts of waste or mismanagement on the part of the respondents, who are in possession of the suit schedule properties and that he is kept out of the possession unauthorisedly. Furthermore, he also sought for mesne profits. The court below already granted temporary injunction restraining the respondents from alienating the suit schedule property pending the suit. In these facts and circumstances, I do not find any justification on the part of the appellant in seeking to appoint a receiver and the court below rightly rejected the prayer and I do not find any merit in this appeal and the same is liable to be dismissed. 13. Accordingly the appeal is dismissed. No costs. AVS ---------------------------- 19-02-2010 [1] AIR 1976 PATNA 366 [2] 1993(2) ALT 154 (DB)