IN THE HIGH COURT OF JUDICATURE AT PATNA M.A No.601 of 2007 1. GHANSHYAM TIWARI 2. LAKSHMAN TIWARI, SONS OF LATE RAMANAND TIWARI, BOTH OF MOUZA, ATHAR, P.S. NAWANAGAR, DISTRICT BUXAR .. DEFENDANTS-APPELLANTS Versus 1. RAM CHANDRA TRIPATHY @ RAM CHANDRA TIWARI, SON OF LATE RAMANAND TIWARI, BOTH OF MOUZA, ATHAR, P.S. NAWANAGAR, DISTRICT BUXAR AT PRESNT RESIDING AT FLAT NO. 763, LAL BAHADUR SHASTRI NAGAR, PATNA 23 .. PLAINTIFF-RESPONDENT 1ST PARTY 2. MADAN TIWARY 3. RADHESHYAM TIWARI BOTH SONS OF RAMANAND TIWARI, BOTH OF MOUZA, ATHAR, P.S. NAWANAGAR, DISTRICT BUXAR .. DEFENDANTS-RESPONDENTS 2ND PARTY **** /9/ 18 August 2010 Heard. 2. This Miscellaneous Appeal is directed against the order, dated 13.04.2007, passed by Sri Sheo Shankar Jha, Civil Judge, II, Buxar, in T.S. No. 134 of 2006 by which the petition of the appellants for appointment of receiver was allowed and defendants 1 and 2 jointly appointed as the receiver in the case to look the management of the property with further direction to submit statement of account at interval by every six months. 2 However, the suit is for partition by plaintiffs claiming therein unity of title and possession whereas case of defendants is that there is no unity of title and possession as co-share is separated, however, found that defendants 3 and 4 denied unity of title, but, defendant 1 supported the case of plaintiffs and considered the bajidawa by Radhey Shyam Tiwary on 27.07.1982, land purchased on 30.05.1977 and 30.08.1977in joint family property, sale deed 6917, dated 30.08.1976, support the case of plaintiffs and, hence, had prima facie case of unity of title and possession and considering that there is no suit of partition and plaintiffs being deprived relied upon decision reported in 1998 (1) B.L.J., 522 (Smt. Jairani Devi & Ors. Vrs. Ram Sanehi Singh & Ors.) and ratio decided that the plaintiff was excluded from enjoyment of the joint property and in a suit for partition and the petition for appointment of receiver is not justify, hence, having regard to the fact that the petitioner is now changing his stand and now the order has been passed in view of the submission that he has been deprived of the usufruct of the joint property not be allowed to take a contradictory stand and, hence, I do not find any 3 merit in this appeal. 3. More over, the limitation petition stood rejected on 06.05.2010 due to non-compliance of order, dated 29.04.2010, and on this ground also the appeal has become infructuous. 4. This Miscellaneous Appeal is dismissed. Cp:2/S.A. ( Gopal Prasad, J. )