RAM PRIT SINGH Vs. SUBHASH PRASAD

JUDGEMENT

(1.) WITH the consent of both sides this appeal was heard finally under Order 41 Rules 11 and 12 of the C.P.C.

(2.) THE appellant/plaintiff had filed a partition suit before the court below demanding one eighth share in Schedules 1 and 3 and one tenth share in Schedule -2 the property of the plaint. The respondent no. 1 is full brother of the appellant and respondent nos. 2 and 3 are the sons of respondent no. 1. The plaintiff had filed the suit for partition amongst four brothers, the plaintiff being one, the respondent no. 1 being the second and there were other two brothers and their descendants as defendants. The plaintiff though stated that the parties had separated in mess, business and cultivation as per convenience but there had not been any partition by metes and bounds and, therefore, the suit with the said share was filed. The plaintiff also took stand that he was cultivating the lands with the respondents and that plaintiff was in Government service when and he returned home after superannuation and started to participate in the joint cultivation of the land with the respondents, he felt difficulty and feeling himself a looser he instituted a suit for his share and during the pendency of the suit a petition for appointment of a receiver with regard to the properties as mentioned at the foot of the petition stated to be in the joint cultivation of plaintiff and respondents was filed. The appellant/plaintiff stated that respondents no. 1, 2 and 3 forcibly possessed all the lands and the appellant/plaintiff was being deprived of its fruits and profits. It was specifically stated in para -9 of that petition that twenty thousand bundles of paddy crops described at the foot of piaint which was kept in Khalihan were forcibly taken control of by respondents with the help of some strong man and bad elements of the society and that when the appellant/plaintiff demanded his share in the paddy it was not given to them. On the grounds of deprivation of fruits and profits of the lands between the appellant/plaintiff and the respondents/defendants and its wastage a prayer was made for appointment of a receiver with regard to those properties. The leaned Sub -Judge -I, Barh, vide impugned order dated 12.5.2005 as passed in title suit no. 81. of 2003 rejected the appellant/plaintiffs prayer on the ground that there was no danger, emergency, loss or mismanagement demanding immediate action and that the prayer of the appellant/plaintiff is not bona fide.

(3.) WHILE arguing, the learned counsel for the appellant referred to the followings as mentioned in the impugned order. "by filing rejoinder, on behalf of defendants no. 1, 5 and 6 the learned counsel submitted that the suit land containing plot nos. 82, 333, 416, 8817, 304, 309, 650, 620, 640, 455, 740, 197, 198, 139, 348, 1678, 455, 644, 645, 5059, 5062, 239 and 240. are in possession of the plaintiff and defendant nos. 18, 19 and 20 as per their share in entire suit land."