Smt. Sushma Devi vs Binod Kumar and others

Gurusharan Sharma, J.—Heard the parties and with their consent this appeal is disposed of under Order 41 Rule 11 of the Code of Civil Procedure. One Bishundhari Prasad got two sons and two daughters, namely, Subodh Kumar Sahu, Binod Kumar, Mukta Rani and Manju Kumari. Sushma Devi is wife of Subodh Kumar Sahu. Binod Kumar and his sons filed Title Suit No. 342 of 1985 against his father and brother for partition of the suit property. The defendant no. 1 appeared in the suit and filed written statement stating, inter-alia that house property of Jamal Road, Patna was purchased out of his personal earnings and was his self acquired property, which was gifted by him in the year 1985 to Sushma Devi, his daughter-in-law. Hence, she was added as defendant no. 6, who also appeared and filed her written statement in the suit. Defendant no. 1 died and as such besides his heirs, who were already on record this two daughters were substituted in his place.

The plaintiffs filed a petition for appointment of receiver, which was rejected as not pressed on 28.3.1988. Second petition dated 24.3.1998 was also dismissed on 14.9.1998. Again after ten years on 17.11.1998 third petition for appointment of receiver was filed, which has been allowed by the impugned order dated 23.4.1999. A receiver was appointed for Jamal Road house, wherein a hotel business is being run and for maintenance/repairs of the residential house of the parties of Chiraiyatand Mohalla of Patna town.

Against the said order the present appeal under Order 43 Rule 1(s) of the CPC was filed on 17.5.1999. Thereafter on 9.9.1999, the trial court appointed one Sri Bibhuti Saran Singh, Advocate to act as receiver.

The question at present moment is whether the plaintiffs have made out a prima facie case of title and possession to the Jamal Road house. The plaintiffs are required to show a very strong case of title and their right to possession over the said house as also that the suit property is in danger of being wasted.

At present a gift in respect of Jamal Road house stands in the name of defendant no. 6 and her husband, namely, defendant no. 2 is managing the hotel business therein on her behalf. Obviously, no case of mismanagement or wastage in respect of the said hotel business, which is being run for their livelihood has been shown by the plaintiffs. The trial court did not found a case of either mismanagement or wastage. It simply observed that appointment of receiver was necessary for protection of hotel business. At this stage unless the deed of gift is declared void, it cannot be said that other co-sharers were completely excluded from enjoyment of the said item of suit property and they were not given their share.

In my opinion, in the facts and circumstances of the case, no case for appointment of receiver was made out. Accordingly, I set aside the impugned order dated 23.4.1999. Consequently, the subsequent order dated 9.9.1999 becomes infructuous. In the result, this appeal is allowed.