MEDA BABY REDDY Vs. AKULA JYOTHI

JUDGEMENT

(1.) The appellant is the first defendant. Aggrieved by the interlocutory order dated 3-09-2009 passed by the Court of the I Additional District Judge, Nellore, in LA. No.180 of 2009 in O.S. No.23 of 2008, he filed the instant appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (CPC).

(2.) First respondent (herafter called, plaintiff) instituted the suit against the appellant (first defendant) and her mother (second respondent herein) for partition of suit schedule property, being agricultural land admeasuring Acs.4.00 situated at Allipuram Village in Nellore. She alleged that the suit schedule property was owned by her mother, that she has not been heard from 28-10-2000, that a presumption arose under Section 108 of the Indian Evidence Act, 1872, that she is dead and no more, and that she is entitled to half share in the suit schedule property owned and left behind by her mother. In the suit she prayed for division of suit schedule property into two equal shares by metes and bounds and allotment of one such share to her as well as costs. Along with the suit she filed LA. No.180 of 2009 under Order XL Rule 1 of CPC for appointment of a Receiver. The application was opposed. Nonetheless, the Court below by impugned order dated 3-9-2009 appointed an advocate as Receiver to manage the property, account the income and deposit in the Court.

(3.) In this appeal placing reliance on a Division Bench judgment of this Court in Chelikam Rajamma v. Pedileti Venkataswami Reddy (1) 1993 (2) ALT 154 (D.B.), the learned Counsel for the appellant submits that the plaintiff has not made out any case for appointment of Receiver, and therefore, the impugned order is erroneous. He also submits that the mother of the plaintiff and first defendant is very much alive, and therefore, succession would not open. He also submits that on 20-2-1993 second defendant executed a Will in favour of the first defendant/appellant bequeathing all her property, and therefore, partition suit is not maintainable. Per contra, learned counsel for the plaintiff/first respondent submits that though his client is entitled to half share, first defendant alone is enjoying the fruits of the property and therefore appointment or Receiver is justified to prevent wastage of the property.