1. This revision application arises out of a suit filed by the plaintiff against the petitioner as defendant No. 1 and two others as defendants Nos. 2 and 3 in the original suit. The plaintiff filed this suit on 27th Feb., 1978 against the above defendants for recovery of Khas possession regarding lands Survey Nos. 58A and 60 situated at Kasar Sirsi, Taluka Nilanga. It is alleged in the suit that plaintiff as the exclusive owner was in possession of the suit lands. Under the partition, which took place during the lifetime of his father, some 20 years back, the lands, which fell to the share of defendant No. 2 and some lands, with which we are not concerned, were given to defendant No. 1, and Land Survey No. 103/B of Kasar Sirsi was allotted to defendant No. a3 in the suit.
2. The plaintiff further alleges that the suit lands have no concern with the defendants. The plaintiff became exclusive owner of these lands under the partition and on the basis of that partition, sharers had got their respective shares and they were in occupation of the respective allotted shares.
3. It is further alleged that the plaintiff is a Government servant and he was unable to look after the property. As he was unable to look after the property, it is alleged in paras Nos. 9, 11 and 13 of the plaint, that a vague proposals was made to the plaintiff by the defendants to form a co-operative society and for that purpose some signatures were obtained and under those signatures, an application was given to the authorities concerned and it appears there is some change of lands which fell to the share of the plaintiff and the plaintiff alleges that the defendants fraudulently attempted to obtain the suit lands which do not belong to them in partition.
4. It was specifically stated in the plaint that defendant No. 1 (that is, the petitioner) is in illegal possession of the suit lands since 1973 and before that the plaintiff was in actual possession as owner. Then the plaintiff claims mesne profits at the rate of Rupees 3,000/- performance years from the date of inception of this suit. Then it is alleged that defendant No. 1 was demanding possession but the possession was refused to him, on 22nd Oct., 1977, and, therefore, the plaintiff filed this suit for recovery of Khas possession of the suit lands and for mesne profits.
5. During the pendency of this suit, the plaintiff made an application for appointment of Receiver. The application for appointment of Receiver was made on the grounds that the suit lands are being in imminent danger on the ground that there were certain trees numbering 85 or 93, about which there is a little controversy, which are cut by the plaintiff. Secondly it was alleged that there is a well in the disputed lands and the length and breadth of the well is likely to be reduced by the defendants and this caused damage to the property and the defendants are wasting the suit property.
6. This application was opposed by the defendants saying that in fact, the suit lands were partitioned among the brothers in 1973 in suppression of the partition which took place in 1957 and the present occupation of the suit land by the defendants is consented to by the plaintiff himself in an application which was filed by them before the Revenue authorities and in pursuance of which mutation was also recorded by the Tahsildar in the year 1978. Relying on this circumstance, it was denied that there is any damage caused to the property. the trees were otherwise worthless and they were of no use and they were, therefore, cut down. They also contended that there is no damage caused to the well. It was contended that this is not a fit case for appointment of Receiver as the defendants who were in actual possession of the property, will be dispossessed by virtue of such appointment during the pendency of the suit and it will cause irreparable loss and harm to them.
7. The learned trial Judge was not impressed by the case made out by the plaintiff. He found that the plaintiff was unable to prove the two grounds of loss and damage caused to the property. As he failed to substantiate his claim for loss of trees by producing the relevant panchnamas and he also was unable to prove any loss caused to him by misuse of well, the plaintiff has not established his case, and, therefore, the learned trial Judge rejected the application praying for appointment of Receiver.
8. Against this order, the plaintiff filed an appeal and the learned appellate Judge has reversed this order by his judgment dated 3rd July, 1979 and directed that a Receiver by appointed for the suit property under O. XL, R. 1 of the Code of Civil Procedure. It is this appellate order which is being challenged by the original defendant No. 1 in this revision application.
9. The learned advocate for the petitioner, who appeared in support of the revision application, contended before me that since the defendants are in actual occupation of the land, which they came to occupy in a partition which has taken place in 1973, it cannot be said that they can be removed from the possession, especially on account of the provisions of O. XL, R. 2 of the Civil P. C. Next it was contended that as a matter of fact, the plaintiff and the defendants are brothers. There was earlier partition in 1957 no doubt, but that partition itself was brought in dispute by the parties again. In short, it was again reopened and in 1973, there was a different partition under which an arrangement was made and shares were exchanged. It is in pursuance of the said second partition in 1973 that the defendant is in occupation of this land and he has got every right to continue in possession and his title to the property is derived from the partition which took place in 1973 and, therefore, his possession cannot be disturbed. Thirdly it was contended that there are no just grounds to give any relief to the plaintiff in this case, as, admittedly, the plaintiff must be found to be in possession of some lands. It was specifically pointed out by the learned advocate for the petitioner that Survey No. 129/3/B which measures more than 20 acres is in actual occupation of the defendant right from the year 1974 till 1980 and even till date. The learned advocate for the petitioner relied on a mutation entry dated 4-8-1973 in pursuance of the application given by the present petitioner and also by the plaintiff, which hears his signature, and he also relied on 7/12 extract to show that Survey No. 1`03/B went to the share of the plaintiff and it is in his actual occupation. In view of this special fact, appointment of Receiver will be injurious to the present rights of the defendants. The learned advocate for the petitioner also relied on a kararnama which was executed by the present plaintiff which is at Exh. No. 37 on 17th Feb., 1978, which shows that the plaintiff himself has agreed to give this land for cultivation to Gulabrao, who is defendant No. 2 in this case on an agreed rent of Rs. 1,100/-. All these facts were only brought to my notice to show prima facie that the plaintiff is in possession of some part of the property, which originally belonged to the defendant and this fact may be considered while granting the discretionary relief such as appointment of Receiver.
10. The learned advocate for respondent No. 1 plaintiff, first of all contended before me that he is prepared to make a statement and made a statement even at Bar that he is prepared to give Survey No. 103/B and this Court should not proceed on the basis that it is in actual possession of the plaintiff. He further contended that there is no bar of appointment of Receiver, in a case where it is found that the defendant is in actual possession of the property if other conditions as provided by O. XL, R. 1 of the Civil P. C. are fulfilled. He particularly emphasised that this is a case where on account of fraudulent transaction, his brothers have deceived the plaintiff and they have partitioned the land again and the allegation of second partition itself is illegal and cannot be supported. It is unknown to Hindu Law that there will be two partitions and, therefore, the case made out by the defendant that in the partition that took place in 1973 he got the land, should be thrown out expression facie. It was contended that there was no provision in Hindu Law or there is no room for such a proposition that once the partition has taken place, the sharers can have second partition. then it was contended by the learned advocate for the respondent-Plaintiff that even if there is a case of second partition in which the plaintiff got the land of the defendant and the defendant of the plaintiff, it does not debar the Court from appointing a Receiver in a fit case. The learned advocate also derived support from the judgments of Lahore High Court and he also invited by attention to the book by Mulla on the Principles of Hindu Law, Fifteenth Edition, and also tot a treatise called Karr on Receivers, Fifteenth Edition, in support of his contentions to which I will refer later on.
11. Before I proceed to examine the merits of the case and the authorities referred to, a few principles relating to the exercise of the Court's power in the matter of appointment of Receiver may be adumbrated. Appointment of Receiver is a special remedy provided to the parties in exceptional circumstances. This is a suit filed by the plaintiff on the ground that he was illegally dispossessed by the brothers. strictly speaking, in terms of law, this would be an action in ejectment, but without going into the merits of the plaint, which the plaintiff wants to emphasise, here it is proper to notice that the whole claim of the plaintiff is based on dispossession and his claim is also coupled with claim of mesne profits. This is a simple action against the defendant for evicting him on the ground of illegal occupation of the property. In such a suit, the plaintiff has to first establish his title. When the title is disputed by the defendant, may be on any ground including such a ground which may apparently appear to be uncommon in law, it cannot at this stage be determined that the rival claimants have no right to get their own titles settled. The learned advocate for respondent No. 1 pointed out that admittedly there was partition in the year 1957 and went on to argue that when there was such a partition earlier, then how is it possible to accept that there was partition again in the year 1973? To appreciate the effect of the partition that took place in 1957, one has to look, into the principles of Hindu, Law which deal with partition. Kindly see 15th Edition of Principles of Hindu Law by Mulla, p. 464, Chapter VI which deals with reopening of partition. I do not want to go in detail of controversy, because the observations of this Court are likely to affect the determination of the substantial controversy at the trial. Suffice it to say that under Hindu Law, partition once made cannot be reopened. However, it is well settled that the partition can be reopened if it is found that there is some fraud or mistake or that some property was excluded from the partition or that some party was at a disadvantage at the earlier partition or it can even be reopened at the instance of a minor. All these things will be of an importance to effect a second partition. the learned advocate for the petitioner mostly emphasised the fact that the defendant has reunited and there is no question of second partition. It is not necessary under Hindu Law to destroy the first partition to allege a second partition of some other date. In this case it is specifically proved from the record that in 1973 when the defendant partitioned the lands, there is in application (Ext. No. 27) on the record which itself is signed by the plaintiff. That application refers to earlier partition which has taken place in 1957. In such a case, it would be hazardous to interpret or to apply the standards of the legal contention as if the defendants are claiming second partition. It is quite possible that the shares might have themselves by consent reopened the partition because of reunion or for some other reason to which I am not prepared to refer to. Exhibit No. 27 is an application given to the Tahsildar and it clearly bears out the fact that the present plaintiff himself was a signatory to the said application and this application was given on a consent by him. The plaintiff, having regard to his status and his education, cannot be said to have signed this application by mistake. It is this version which was the basis of the mutation entry which took place on the strength of this application (Ext. No. 27) and these proceedings are totally fraudulent and completely unauthorised as alleged in the plaint.
12. The plaintiff has tried to explain this signature on this paper by alleging that the defendants misguided him that they will form a co-operative society and obtained signatures on blank papers and they are utilising his signature for this application. This will require evidence and this Court would not accept that it was an unauthorised transaction only on the mere say of the present plaintiff. Having regard to the entry of mutation dated 16th Feb., 1978 which is based on this very application which was filed by the plaintiff, it is difficult to appreciate that the plaintiff must not have been aware of the transaction which has taken place in 1973. This is sufficient for the purpose to prove the real controversy in the suit.
13. Coupled with this, there is a record which was brought to my notice by the learned advocate for the defendant. Exhibit No. 32, which are 7/12 extracts, show that right from 1974 onwards till 1980 the plaintiff is in occupation of Survey No. 103/B and emphasising this factual possession only to show that this is a case where a brother, who is dissatisfied with the partition which had taken place, has deceived the other brother to obtain possession of certain suit lands, which were formerly a part of the partition transaction. If it is shown that prima facie the plaintiff is in actual occupation of some portion of the family lands, this would be an important circumstance to consider the discretionary relief of appointment of Receiver. On the facts which are disclosed, especially the mutation entry, 7/123 extracts (Ext. N0. 32), application (Ext. No. 27) and a kararnama which was shown to me by the learned advocate for the defendant, I am inclined to think that it is impossible to suggest that the plaintiff must not have been in actual occupation of Survey No. 103/B.
14. These observations are made only for the purpose of this case and they are limited to the decision of this case. The learned trial Judge, who will dispose of this matter on merits, will not take these observations into consideration if a question arises as to the determination of actual occupation of Survey No. 103/B.
15. Once it is found that Survey No. 103/B is in actual occupation of the plaintiff as it is found by the learned appellate Judge, I think that the whole issue that arose in this matter will be settled and there will be no necessity to take into consideration the legal submissions. However, as the legal submissions were made before me, I have to deal with them separately.
16. The first submission of the learned advocate for the respondent is that under O. XL, R. 2 of the Code of Civil Procedure, this Court can appoint Receiver even in a passer. He relied on two authorities in support of his argument. They are Amarnath v. Mr. Tehal Kaur AIR 1922 Lah 444 and Dhumi v. Nawab Muhammed Sajjad Ali Khan AIR 1923 Lah 623. It is true that the case of Amarnath (supra) is a case where, in fact, there are observations which do support the contention raised by the learned advocate for respondent No. 1. In this case, at page 446, it appears that it was argued before the Lahore High Court that the Court has no authority to remove from the possession or the custody of property any person whom any party to the suit has not a present right so to remove. To this, the Judges of the Lahore High Court answered that the aforesaid sub-rule (that is, sub-rule 2 ) refers to the case of the removal of a person other than a party to the suit and concurring with this exposition of law, they held that sub-rule (a2) does not debar the Court from removing one of the parties from the possession of the property. This was a case which related to a trust property. This was a suit merely for a declaration. The Court had appointed a Receiver and the learned single Judge, who had appointed the Receiver, has acted on the provisions of sub-rule (1). The points which were raised before the Lahore High Court were confined, in fact, to the question whether the appointment of Receiver should be continued or not. On the merits, the learned Judges observed that whenever it is just and convenient, the Receiver should be appointed to take the charge of the property, which has been the contention of the parties. It was on the basis of this rule and these words, which are appearing in sub-rule (2), that is, 'just and convenient', that the Lahore High Court observed as above and, as far as these observations relating to O. XL, sub-rule (2) are concerned, it was also held that the appellate Court should not interfere unless it is satisfied that the discretion has been improperly exercised and contravenes any principle of law. The observations made by the learned Judges at page 446 by way of obiter and, therefore, the Court will not be justified in following the same in each and every case.
17. The second authority which was stated by the learned advocate for respondent No. 1 was the case of Dhumi, AIR 1923 Lah 623. The learned advocate referred to observations made at page 625. Here it has been stated:---
'.................. it should be observed that the lower Court in the exercise of its discretion after considering all the facts and evidence has come to a conclusion that the appointment of a Receiver with regard to the collection of rents in this case was necessary. It is now for the appellants to show that the Court exercised its discretion improperly. It has been repeatedly held that a Court of Appeal will not, except in an extreme case, disturb an order as to the appointment of a Receiver by the Court below.
This case is an authority for the principle that the powers of the appellate Court in examining the propriety of the orders as to the appointment of a Receiver are to be exercised in extreme case. In the case in hand, the appellate Judge has reversed the decision of the trial Court on two points. He first of all held that the plaintiff was unable to prove the loss as alleged. he also held that the plaintiff is in occupation of one Survey No. 103/B which measures more than 20 acres and on the basis of these findings, he rejected the application for appointment of Receiver. In appeal, the learned appellate jurisdiction held that loss and damage has been satisfactorily proved, and therefore, he disturbed the finding of the trial Judge. I, therefore, do not think that any support can be derived from these two decisions.
18. The learned advocate for respondent No. 1 also invited my attention to a judgment of the Madras High Court delivered by Justice Ramaswami in the case of T. Krishnaswami Chetty c. Thangavelu Chetty, : AIR1955Mad430 . This judgment is a treatise on the principles of law of Receivers which were enunciated in this judgment. This is a very exhaustive judgment showing that the law of Received is based on five principles, which are categorised by the learned Judge at pare 430 and in clause (4) it is observed that an order appointing a Receiver will not be made where it has the effect of depriving a defendant of a 'defendant facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one.
19. If in this case this principle is to be followed, then the authority cited by the learned advocate for respondent No. 1 cannot be of any assistance to him except to show that there are some observations on general principles for appointment of Receiver. I, however, do not quarrel with the general principles which are applicable in such cases. In fairness to the authorities which are relied upon by the learned advocate for respondent No. 1, it must be said that they do not help him very much. Relying on the book Kerr on Receiver, 15th Edition, page 7, it was specifically mentioned by the learned advocate that where the evidence on which the Court is to act is very clearly in favour of the plaintiff, then the risk of eventual injury to the defendant is very small, and the Court does not hesitate to interfere. Relying on this passage, it was suggested that here in this case ion the basis that there cannot be any repartition or second partition under Hindu Law, the case of the defendant should be held that the appointment of Receiver will be justified. In the very book, if we go to earlier portion of the same passage, on pages 6-7 the learned author has stated:---
'The Court by taking possession at the instance of the plaintiff may be doing a wrong the defendant; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation.'
These observations of the learned author are directly relevant in this case. Assuming for a while in this case that the plaintiff is able to succeed in the suit, I do not think that the property is in imminent danger and any loss could be caused to the agricultural lands. It is an admitted fact that the trees were already in existence and they are already cut. The plaintiff is claiming mesne profits in view of the special facts of the case. I do not, however, understand how an imminent danger is being caused to the property so as to bring the case of the plaintiff within the provisions of O. XL, R. 1 in order to appoint a Receiver in this case. The only result of such an appointment will be that the present defendants will have to lose possession and face that trial without possession and there may be possibility of plaintiff causing some mischief to the property.
20. In view of this condition, I do not think that any of the authorities which are cited before me can be of any assistance to the case of respondent No. 1 in this case.
21. In the last, as the parties are claiming rival possession in this case; the plaintiff claiming a title on the basis of the partition which had already occurred, and the defendants claiming the title on the basis of a partition which occurred in 1973 especially backed by the plaintiff's signatures; it is not possible for me to hold that the plaintiff still has a strong prima facie title in order to have an appointment of Receiver being ordered. I do not want further to discuss the controversy as any observations made by this Court will go a long way at the trial stage and, therefore, I do not want to discuss the pleadings and records which are filed in this case.
22. One objection on behalf of the learned advocate for the respondent was in respect of the Kararnama, I am not any way relying on this kararnama, which is shown to me and it appears that this kararnama seems to have been brought on record along with say of the defendants. I have not taken into consideration the contents of this kararnama. However, the fact remains that such a kararnama is executed by the plaintiff himself and this kararnama and the signature of the plaintiff to the application filed before the Tahsildar are two important circumstances, which are bound to weigh with any Court in order to ascertain the true nature of the transaction which might have taken place between the parties. Having regard to these two features, especially the kararnama, it is not possible to hold that the case of the defendants is extremely unsatisfactory or that the evidence which is appearing in this case is in favour of the plaintiff at this state.
23. In the result, this revision application is allowed and the order passed by the learned appellate Judge ordering the appointment of Receiver is set aside and that of the trial Court is restored. rule is accordingly made absolute with no order as to costs.
24. Application allowed.