NIMBANA GOWDA Vs. APPA SAHEB AND OTHERS

JUDGEMENT

(1.) THESE two appeals are filed by the Defendant -Appellant challenging the order passed in IA Nos. 1 and 3 by the Civil Judge, Senior Division, Haveri, dated 24.10.2000. Parties are referred as per their original ranking before the trial Court.

(2.) PLAINTIFF -Respondents, filed a suit against the sixth Respondent in OS No. 22 of 2000 seeking for partition and separate possession of their alleged 17/24 th share in the suit scheduled property consisting of agricultural lands in addition to house property situated in Sy. No. 54/1A+B/2 measuring 4 acres 14 guntas situated in Ijari Lakamapur Village. According to the Plaintiff, the suit -scheduled property is the ancestral property of Mudigowda Andani Gowdar. The Plaintiffs and the Defendant No. 1 are the heirs and successors of Mudigowda in joint possession of the property. Defendant No. 1 was refusing to give their share resulting in the present suit. Plaintiffs filed IA.I seeking for appointment of a receiver in respect of agricultural lands. The present Appellant -Defendant No. 2 after coming to know of the suit filed by the Plaintiffs filed IA.II, got himself impleaded as Defendant No. 2. Defendant No. 2 contended in his objections to the IA that he is the owner of the suit scheduled property in terms of a registered sale deed dated 21.4.1954 executed by the father of the Respondents and the husband of the second Plaintiff. According to him, father of the second Plaintiff conveyed his 1/3rd share in the joint family property in favour of the father of the Appellant -Defendant No. 1. Therefore the Plaintiff has no right, title, or interest over the property. He has also filed objections to the receiver's application. Learned trial Judge heard the matter and framed the following point reading as under: 1. Whether the Plaintiffs prove that he has got prima facie case and as such it is necessary to appoint a Court receiver to lease the suit property bearing R.S. No. 54/A+B2 measuring 4 acres and 44 guntas of Ijarilakmapur, as per IA Nos. I and III and auction the standing crops in public auction and sale proceeds be deposited in Court, for the year 2000 -2001 as per both applications? After hearing the parties before him, the trial Judge allowed I. As. I and III. The operative portion of the order of the trial Judge reads as under: IA Nos. I and III filed by the Plaintiffs under Order 40, Rule 1 Code of Civil Procedure to appoint a Court receiver are allowed. One Sri S.S. Hiretanadavar, advocate is appointed as the Court receiver in this case. The Court receiver is hereby directed to lease the land in public auction either in the chavadi or in the village panchayat Ijarilakamapur for the year 2000 -2001 as per IA No. I. Further so far this I.A. No. I is concerned, already time has gone, because auction of land for cultivation can only be made in Ugadi festival. Now as per I.A. No. III the crops are ready for harvesting, as per the case of the Plaintiffs and the Court receiver has to auction the standing crops in the land in public auction. Hence, the Court receiver is hereby directed to auction the standing crop in the suit land in Chavadi or village panchayat, Ijarilakamapur and sale proceeds be deposited in the Court. Sale proceeds can be distributed after the disposal of the case, to the parties who are entitled for receiving the amount. Fees for the Court receiver is fixed at Rs. 500/ -. The present appeals are filed being aggrieved by the order of the trial Judge.

(3.) BOTH the Counsel took me through the pleadings, documents and the arguments placed before the Court below. Learned Counsel for the Appellant questioned the order of the trial Judge by contending that the said order is contrary to the well accepted principles in the matter of appointment of receiver. According to him the learned trial Judge has committed an error in failing to notice the relevant ingredients in terms of Order 41, Rule 1 Code of Civil Procedure. He argued that his client has a valid title to the suit scheduled property in terms of the sale deed of the year 1954. The Plaintiff having no right, title or interest cannot seek for appointment of a receiver. According to him in a suit where the Plaintiffs seek their share on the ground of possession by the Defendant no receiver can be appointed. He relies on the judgment reported T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty and Others, AIR 1955 Mad 430 , Srinivasa Rao v. Babu Rao AIR 1970 Kar 141, Lakshmi Narayanan v. S.S. Pandian AIR 2000 SCW 3065.