RAJ KISHORE TIWARY Vs. SATYENDRA TIWARY

JUDGEMENT

(1.) The Appellants are aggrieved with the order dated 15.12.199 passed by Sub Judge in Title Suit No. 120 of 1997/46 of 1998 by which the Sub Judge has appointed the Defendant No. 13 as Receiver for the property detailed in Schedule 'K' of the plaint.

(2.) The background of the case is that a Title Suit bearing No. 120 of 1997 was filed by Respondents-(Plaintiffs) to set aside sale deeds executed by Rajeshwari Kuer in favour of Appellants-(Defendants 1 to 17) for the properties detailed in Schedule 'K' as illegal and not binding upon the parties of the suit since Respondent No. 1 (Plaintiff) claimed to be the adopted son of Rajeshwari Kuer and her husband late Jagdish Tiwary, whereas the case of the Appellants-(Defendents) No. 1 to 11 was that the Plaintiff No. 1 was not the adopted son of late Jagdish Tiwary and Rajeshwary Kuer and the story of adoption was completely false.

(3.) It has been submitted on behalf of the Appellants that on 09.07.1997 an application was filed for restraining the purchasers from interfering in the possession which prayer was rejected by order dated 21.08.1997. Being aggrieved with such refusal MA No. 494 of 1997 was filed before this Court which was disposed off by order dated 15.04.1998. Significantly, during the course of hearing of said Miscellaneous Appeal the Plaintiffs-Defendant herein conceded that they would be satisfied if the properties already transferred is not further transferred herein after by the purchasers during the course of the suit. In effect therefore the Plaintiffs/Defendants conceded that the possession of the suit land was with the Appellants herein. Thus the submission is that under Order 40 Rule 1 Sub-rule 2 there is a specific bar on reopening the issue in view of acceptance of the Plaintiffs-Respondent herein that the Appellants were in possession and, therefore, no Receiver should have been appointed.