KHALLI SAHU Vs. GOPI GAUDA

JUDGEMENT

(1.) The present civil revision is directed against the order dated 14-12-1998 passed by the 2nd. Additional District Judge, Berhampur, in Misc. Appeal No. 3 of 1997/ (Misc. Appeal No. 85/96-G.D.C), confirming the order dated 12-11-1996 passed by the Civil Judge (Senior Division), Aska, in M.J.C. No. 78 of 1996, arising out of T.S. No. 28of 1996, rejecting an application under Order 40, Rule 1 of the Code of Civil Procedure filed by the plaintiff-petitioner for appointment of-Receiver of the suit land during the pendepcy of the suit.

(2.) The facts as delineated in the revision petition tend to reveal that the present petitioner-Khalli Sahu filed a suit for declaration of his right, title and possession over the suit land and to permanently restrain the defendant-opposite parties from going upon the suit land. The case of the plaintiff is that the suit land is a part of the property belonging to late Kasinath Sahu, and, after his death in 1940, the property was succeeded by his widow-Suna Sahuani. Kasinath and Suna had no male issue except three daughters, namely, Sabarna. Jema and Leelabati. The present petitioner, who is the plaintiff in the Trial Court, is the husband of the third daughter-Leelabati and opposite party No. 2 Jema is the second daughter. All the three daughters got married but the third daughter-Leelabati lost her husband some time after her marriage and, therefore, she had to live with her mother. The widow of late Kasinath, Sahu with an intention to have an illatom son-in-law to look after her gave Leelabati in marriage to the present petitioner, who agreed to the same and in consideration thereof, Suna had executed a gift deed on 9- 11-1957 giving thereunder half of her interest in the entire property including land and house. As per the gift deed, the doner had Ac-. 12.91 cents of cultivable land out of which she donated to Leelabati and her husband-Khalli an area measuring Ac. 6.45 cents. The old suit survey No. 472 of Patta No. 156 comprises an area of Ac. 1.74 cents and was included in the schedule of which half interest was gifted. The claim of the plaintiff is that after the death of Suna in 1961, her three daughters succeeded to their mother in respect of other half of Ac. 12.91 cents which was in possession of their mother. The petitioner further alleges that the eldest daughter of Suna, i.e., the sister of his wife, and her husband-Raghunath clandestinely created a deed of partition on 1-9-4-1962 amongst three sisters, by taking advantage of the absence of the plaintiff-petitioner and by virtue of the aforesaid deed of partition the disputed land of Ac. 1.74 cents was allotted in favour of the second daughter Jema, opposite party No. 2. The petitioner further claims that in spite of partition of the suit land he continued to possess the same though that fell to the share of Jema, opposite party No. 2, and on 10-9-1995 Jema had executed a deed of re- linquishment in respect of the suit land in favour of Leelabati, i.e., wife of the petitioner. It is also stated by the plaintiff that the aforesaid suit land was recorded in the name of opposite party No. 2-Jema during the settlement operation of 1986 on the basis of the partition deed of 1962. The plaintiff claims that the said recording was done during his absence from the village when he had gone to Berhampur for treatment. But at the time of distribution of patta in respect of the suit land, the same was received by the petitioner. The petitioner further alleges that without any possession! opposite party No. 2 has executed a sale deed in favour of opposite party No. 1 and on the allegation of disturbance created by opposite party No. 1 in the peaceful possession of the plaintiff, the latter initiated a proceeding under Section 145, Cr. P.C. to get the land attached but the said proceeding was dropped and on the allegation that opposite party No. 1 was creating disturbance and trying to disturb the possession of the petitioner, the suit was filed along with an application under Order 40, Rule 1, C.P. C. praying for appointment of Receiver on the ground that the petitioner being in continuous peaceful possession of the suit land, he shall suffer ir-. reparable loss if a Receiver is not appointed in respect of the suit property.

(3.) The case of the opposite parties in opposing the application for appointment of re ceiver is that all the daughters of Suna were in joint possession of the entire, estate left behind by their father-Kasinath till 1962, when they partitioned the same amongst themselves by a registered deed of partition and as the suit land fell to the share of Jema, she possessed the same. The suit land was accordingly recorded in the name of Jema during the settlement operations. On 19-1-1996 Jema transferred the suit land in favour of opposite party No. 1 by registered deed for a consideration of Rs. 40,000/-'and has delivered possession thereof to opposite party No. 1, who is in possession of the same on his own right- The defendant-opposite parties also raised the question of maintainability of the misc. case at the instance of the present petitioner on the ground that he is a stranger to the suit property.