BHIMNATH MISRA Vs. SHYAMANAND SINGH

JUDGEMENT

(1.) This appeal is directed against an order dated 16 March 1945 passed by the learned Subordinate Judge of Bhagalpur in partition Suit No. 13 of 1935 appointing Eai Bahadur Kamleshwari Sahay as Receiver of the Banaili estate which is the subject-matter of the litigation. The shares of the parties are as follows:

(2.) Defendants 9 and 9b 3 as. Preliminary decree was passed in the suit on 13th July 1937. As the properties consisted mostly of revenue paying estates, the partition had to be effected by the Collector under Section 54, Civil P.C. These revenue paying estates lie in different districts and, therefore, the Government appointed one Babu Matukdhari Singh, retired Deputy Collector, as Special Batwara Officer to effect partition of the same. He appears to have actually taken charge on 1 September 1939. The estate was then in the hands of two Receivers who were appointed in January 1938. There was an arrangement between the parties, as embodied in the petition which was filed by them in Court on 27th November 1939, with the result that one Rai Bahadur Gourishankar Sahai was appointed Receiver and Rai Bahadur Kamaleshwari Sahai was appointed Manager. Babu Matukdhari Singh, being apparently unable to carry on the partition work as the Receiver and the Manager did not co-operate with him, resigned his post. He was succeeded by Rai Bahadur Singheshwar Prasad Sinha, a Deputy Collector, who actually took charge on 23 December 1940. As agreed to by most of the parties, the Subordinate Judge appointed him also as Receiver of the estate in the place of Rai Bahadur Gourishankar Sahai who tendered resignation. The estate thus continued in the charge of Rai Bahadur Singheshwar Prasad Sinha from December 1940 to December 1943. He was succeeded by Rai Bahadur Jaidev Misra, another Deputy Collector, who took charge on 23 December 1943. He was also the Receiver of the estate. On account of ill-helth he resigned his post on 10 February 1945. In the meantime there was some correspondence with the Government as to who should be appointed Batwara Officer in his place. On 16th January 1945, the plaintiffs and defendants 1 to 8a filed a petition stating that as Rai Bahadur Jaidev Misra was going to resign his office, some other person should be appointed Receiver and Commissioner for completing the partition of the remaining Banaili Eaj properties and for carrying on the administration of the Raj till such time as necessary.

(3.) They suggested the names of three persons in order of preference and prayed that one of them should be appointed Receiver and Commissioner. Defendants 9 and 9a asked the Subordinate Judge to stay his hands until the Government had nominated a successor of Rai Bahadur Jaidev Misra. The Subordinate Judge, however, proceeded to consider the application filed by the plaintiffs and defendants l to 8a on 16 March 1945. He held that the Batwara Officer and the Receiver should be different persons, and, therefore, he appointed Rai Bahadur Kamleshwari Sahai, one of the persons mentioned in the petition of 16 January 1945, as Receiver. It is against this order that the present appeal has been filed by defendants 9 and 9a.