HAMIDA RAHAMAN Vs. JAMILA KHATUN

JUDGEMENT

(1.) This is an appeal against two orders by which the Receiver who had been appointed in a suit was directed to take possession of certain properties, moveable and immoveable. In the suit in question Jamila Khatun and others were the plaintiffs and Mokbul Ahmed and others were the defendants. The appellants before us are no parties to the suit; but all the parties to the suit and the two appellants are descendants of one Haji Sadaddin Sadagar. The suit in question is a suit for partition of the properties left by Khalil Ahmed Sadagar, the eldest son of Haji Sadaddin Sadagar. When the Receiver was appointed in the suit and directed to take possession of the properties described in the plaint the present appellants filed a petition in which they alleged that certain properties described in Schedule 1 of their petition belonged to them both, that certain immoveable properties described in Schedule 2 belonged to the petitioner No. 2, and that certain moveable property described in the list which had been previously filed was in the possession of and was the property of both the petitioners. The learned Subordinate Judge who was trying the suit was of opinion that the allegation in this petition was not bona fide as regards the properties of Schedule 2 of the application and the moveable property, As regards the properties of Schedule 1 he directed the Receiver to make an enquiry as to the truth of the allegation and at the same time directed the Receiver to take possession of all the properties except the properties of Schedule 1. That is the first order appealed against, being order No. 18 of the order-sheet dated 17 March 1920. The second order appealed against is the order No. 25 passed on 23 March 1920. There the Receiver was again ordered to take possession of the properties in suit other than that as to which he had been ordered to enquire and report, and be was farther directed to take the help of the Police and, if necessary, to break open any locks on doors of houses in which the properties of which he was to take possession were reasonably believed to be.

(2.) In our opinion, this appeal must be allowed. The lower Court, on an objection being made by persons who were no parties to the suit; claiming the properties to be theirs and in their possession, was bound by Clause (2) of Rule 1 of Order XL to some to a definite finding as to the truth of these allegations before it could make an order directing the Receiver to take possession of the properties. We do not think that the allegations in the petitions can be disposed of on the ground of a discrepancy between them and the contents of earlier petitions filed by one of the petitioners and others when they applied to be added as parties to the suit. As regards the moveable property there was a distinct allegation of sale by auction by the National Bank and purchase by the petitioner. The petitioner should have been given an opportunity of proving the truth of this allegation. Similarly, with regard to the properties of schedule an enquiry should have been held into the allegation as to the purchase by the petitioner No. 2. As regards the properties of Schedule 1 an enquiry has been ordered, but such an enquiry should have been held by the Court. It is not the duty of the Receiver of a property to enquire into the claim of title made by third parties, and the Court has no power under the Code to delegate an enquiry on this point to the Receiver. As an enquiry must be held into the allegation as regards the properties of Schedule 2 by the Court, so also must an enquiry as to the allegation with regard to the properties of Schedule 1 be held by the Court. It is pointed out on behalf of the respondents that, although in the petition it is stated that the moveable properties claimed were set out in a list previously filed yet when the Pleader moved the petition in the lower Court he was unable to find that list. It appears, however, that, subsequently, when the Receiver tried to take possession there was no real doubt as to what properties were claimed by the petitioner-appellants. If there be any difficulty on this point the appellants can be called on to furnish a list to take the place of the one which could not be found when the applications were made.

(3.) The result is, that the appeal is allowed, We set aside the orders of the lower Court dated the 17 of March 1920 and the 23 of March 1920 directing the Receiver to take possession of the properties claimed by the petitioners and we further direct that no such, order be made in respect of any of the properties claimed until the claim of the petitioners has been duly investigated by the lower Court. The respondents must pay the appellants their costs in this appeal. We assess the hearing-fee at three gold mohur. Rule No. 611 OF 1920.