RAVI LAKSHMAIAH Vs. NAGAMOTHU LAKSHMI

JUDGEMENT

(1.) The appellant herein is the sisters son of the plaintiff in O.S. No. 66 1966 Sub-Court, Vijayawada. The plaintiff in that suit filed the suit for partion and separate possession suit for partion and separate possession of her 1/2 share in the suit schedule properties which belonged to her sons Venkatramaiah who died on the 30/12/1963. The two defendants to the suit are his widows. The first defendant supported the plaintiff. but the second defendant contend that she was entitled to the whole property of their deceased husband under an unregistered will executed by him on 28-12-1963. The plaintiff stating that she was residing in a portion of the houses belonging to Venkatarmaiah applied for an injunction in I.A.No.391 of 1969 restoring the second defendant from interfering with her possession. On a undertaking given by the second defendant that she had no objection to the plaintiff being in possession of the northern portion of the house till the suit was disposed of the application for injunction was ordered accordingly and the plaintiff remained in possession of that portion. She died on the 3/03/1969. The appellant herein claiming that the plaintiffs entire property had been bequeathed to him under a registered will dated 5-2-66 filed I.A. 992 of 1969 to implead him as a party and continue the suit. When this application was called on 20-3-69 the second defendants advocate appeared and took notice and prayed for time for filling counter. The petition was accordingly posted to 25/04/1969. Meanwhile on 10-4-69 the second defendant filed I.A. no. 1194 of 1969 to restrain the appellant herein from interfering with her possession of the suit house which is item 4 of the plaint A schedule. Interim injunction was granted on 11-4-69. The appellant thereupon filed I.A. 1284 of 1969 to vacate the said interim injunction.

(2.) The court below came to the conclusion that the second defendant was not in possession of the northern portion of the house, as the plaintiff was admittedly in possession of that portion in view of the undertaking given by the second defendant in the prior I.A. and there was no proof that the second defendant subsequently got into possession of that portion. It also came to the conclusion that the appellant was not in possession of the said portion. In the circumstances of the case in considered it just and convenient to appoint a receiver for the northern portion of the house. The court below therefore vacated the interim injunction order but appointed Sri S.R. Das, as receiver to take possession of the northern portion of the suit house. The receiver was directed to submit a report as to the feasibility of its being given on rent. This appeal is against the said order and is preferred by the respondent in I.A. No. 1194 of 1969.

(3.) The main contention urged on behalf of the appellant is that having held that the applicant was not in possession of the northern portion of the house the court below should have merely vacated the interim injunction. It erred ion appointing a receiver. It was submitted that in the absence of any application for the appointment of a receiver. a receiver cannot be appointed in an application for an injunction.