POOVAMMA Vs. CHENNAMMA ALIAS PARVATHI

JUDGEMENT

(1.) THIS is an appeal under Order 43, Rule 1 of the Code of Civil Procedure from the judgment and order dated 13-4-1994, passed by Sri G. T. Veerabhadrappa, Principal Civil Judge, Mangalore, on LA. No. 20 under Order 40, Rule 1 of the Code of Civil procedure, hereinafter referred as, the 'code' which had been moved in the regular suit O. S. No. 87 of 1991, for partition of the suit schedule properties by metes and bounds into 383 equal shares taking into consideration the good and bad soil and allot and put the plaintiffs and defendants 1 to 9 in possession of 369 such shares and directing the defendants 95 to 136 to hand over possession of the same. The plaintiffs had also claimed future mesne profits at such rates as may be fixed by Court commensurate to their shares.

(2.) IN the application for appointment of Receiver made under Order 40, Rule 1 of the Code supported by affidavit, it had been stated that the entire property is being enjoyed by the defendants and the entire income therefrom is being misappropriated by the opposite parties-defendants, namely defendants 95, 103, 113 and 135. It had further been asserted that the four respondents have been cutting down and removing the valuable trees and were committing waste and damage to the property as well as they were trying to induct strangers into possession of the portions of the properties, so as to adversely affect or harm the interest of plaintiffs and other defendants in the suit. The plaintiffs-applicants as such prayed therein for appointment of Receiver with a direction to the Receiver to take possession of the property and to collect income of the properties in order to safeguard the interests of the parties.

(3.) OBJECTIONS to this application of the plaintiffs had been filed by one Gopala, who has been defendant 135, in the suit and appellant 11, in the memo of appeal. It was asserted that plaintiffs had no right to the suit schedule property and they are not entitled to claim any relief including the present application and it was not maintainable. In the objections it was also asserted that it is wrong to say that the defendants have got only small fraction of shares. Paragraph 3 states that it is denied that the entire property is enjoyed and the income is misappropriated by the respondents and that they have got small fraction of share. The objector-defendant 135, also denied the allegations of cutting of the trees as well as allegations to the effect that the opposite parties during the interim applications, were inducting strangers into possession of the portions of the properties. The learned Trial Court considered the matter and as mentioned earlier, the learned Trial Court allowed the application on following basis and considerations: (a) By granting of interim injunction order dated 20-3-1992, defendants 95, 103, 113 and 135 were restrained from cutting and removing the timber from suit schedule property and in view of that very fact, the Court further observed, that, thus it was shown and proved that the defendants were trying to cut, remove and dispose off the timber, i. e. , they tried to commit the waste and damage in respect of suit schedule property, (b) The trial Court in its order further mentioned that the shares of the plaintiffs and defendants 1 to 94 are about 369 out of 383 shares, but the four defendants, namely defendants 95, 103, 113 and 135 were in possession, that is the four respondents are opposite parties to the application for appointment of Receiver, who were in exclusive possession of the suit properties. In such a situation, others were being deprived of the benefits and in the event of decree being passed, it will create lot of complications and difficulties in getting the mesne profits determined and there will be lot of difficulties in reaping the fruits of the decree in respect of mesne profits from the four respondents, who are in possession of the entire property. It opined that when majority of the parties are excluded from the possession, it is only few persons having only little share in suit property, who are in possession of the entire property, then the major parties who are excluded from possession, though entitled to major share, are entitled to get by the appointment of Receiver. It further opined that order passed on LA. 19, also indicated that four defendants were damaging the property, while their shares will be too less than that of plaintiffs-applicants and defendants 1 to 94. Under the circumstances, it opined in the interest of justice, it would be proper to appoint a Receiver in respect of agricultural land and it did pass the order.