Basant Lal Saw vs Raj Kishore Saw And Ors

This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 13.02.2019 passed in Original (Partition) Suit No.214 of 2014 is under challenge by which the application dated 19.02.2015 filed by the plaintiff/petitioner herein under Order XL Rule 1 of the Code of Civil Procedure has been rejected.

The brief facts of the case herein is that a partition suit has been filed being Title Partition No.214 of 2014 in which the private respondent/defendants have appeared and filed the written statement. The petitioner has filed an application under Order XL Rule 1 of the Code of Civil Procedure for appointment of receiver on the ground that the respondents are collecting rent from the part/portion of the property occupied by the plaintiff and since the petitioner is the co-owner he is also entitled to get the rent and as such by not disbursing the portion of the rent in his favour the damage is being caused, therefore, appointment of receiver is required to be there but the trial court while rejecting the said application vide order dated 13.02.2019 did not consider the same against which this writ application has been filed.

Learned counsel for the petitioner has submitted that the trial court has not appreciated the question of damages which is being caused to the petitioner by acceptance of rent in favour of the respondents and not distributing the same in favour of the petitioner even though he is co-owner of the property for which he has filed the partition suit but without appreciating this aspect of the matter the impugned order has been passed.

Having heard learned counsel for the petitioner as also after going across the pleading made in the writ application and the finding recorded in the impugned order, this Court deem it fit and proper that before entering into the legality and propriety of the matter Order XL Rule 1 of the Code of Civil Procedure is to be referred, which reads as under:

" Order XL Appointment of Receivers

Appointment of receivers.-(1)Where it appears to the Court to be just and convenient, the Court may by order-

(a) appoint a receiver of any property, whether before of after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver; and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit."

(2) Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove."

It is evident from the aforesaid order receiver can be appointed subject to the condition stipulated in the aforesaid provision as referred hereinabove.

One of the clause sub rule 1(d) which contains all powers pertaining to rent provided thereof, therefore, it is not that the order for appointment of receiver can be passed by the trial court but depending upon the facts and circumstance if the trial court thinks for appointment of receiver by considering that any irreparable loss/damages is caused to the party.

Herein the factual aspect which is not in dispute is that the petitioner has filed a partition suit claiming the said property of the ancestors while the said factual aspect has been disputed by the defendant by filing written statement wherein stand has been taken that property in question has been acquired from his own earning and therefore it is not an ancestral property and hence there is no question of partition of the said property.

In view of the said admitted fact although it is a partition suit but if the admission of the parties would be about the ownership and there is no dispute about co-share then the matter would have been different as has been submitted by the petitioner that the damage is being caused to him and the damage is to the extent that other co-sharer are to be allowed to accept the rent but this is not the case here and dispute has been raised by the defendants disputing the fact that the co-sharer as also the co-ownership by virtue of the denial of the fact that the property does not belong to Hindu untied family, in that aspect of the matter the petitioner filed application under order under Order XL Rule 1 of the Code of Civil Procedure.

As such the present petition of the petitioner does not fall under the criteria as stipulated under Order XL Rule 1 of the Code of Civil Procedure, it is for the reason that such order has been passed in this case.

In view of the factual dispute in between the parties the same needs adjudication about the ownership of the property in between the parties, therefore, the trial court has passed the order by rejecting the said petition, keeping the aforesaid factual aspect in consideration.

This Court is not inclined to interfere with the impugned order and, therefore, the writ petition fails and is hereby dismissed.