Dismissed

Nallu Harinath v. Muppala Narayana Reddy

Telangana HC5 Mar 2012CMA/1311/2011

Case brief

AI extract

What is this about?

In this civil miscellaneous appeal, the High Court dismissed an application to appoint a receiver over disputed land. The Court held the application lacked merit and grounds for interference, citing the presence of pending partition litigation and the lack of immediate emergency.

What did the court decide?

The Civil Miscellaneous Appeal was dismissed, upholding the order refusing the appointment of a receiver.

Nallu Harinath Vs Muppala Narayana Reddy — Property and Title | Telangana HC (2012)

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THE HON'BLE MR JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.S.APPA RAO

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C.M.A.No.1311 of 2011

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JUDGMENT (Per the Hon’ble Sri Justice Ghulam Mohammed)

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The appellant herein filed O.S.No.100 of 2010 on the file of the Family Court, S.P.S.R.Nellore District, for declaration of his title over the plaint schedule property and for recovery of possession. Along with the suit, he also filed I.A.No.578 of 2010 under Order XL Rule 1 read with Section 151 CPC for appointment of a receiver to manage and administer the plaint schedule property to an extent of Ac.3.74 cents pending disposal of the suit. By order dated 20.07.2011, the Court below dismissed the said I.A. Aggrieved by the same, the present civil miscellaneous appeal is filed. The appellant herein is the petitioner. The parties hereinafter are referred to as they are arrayed in I.A.No.578 of 2010 before the Court below.

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2. The brief averments made in the affidavit filed in support of the petition are as follows:

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The plaint schedule property fell to the share of Respondent No.1 in the family partition and the petitioner purchased the same from Respondent No.1 for a consideration of Rs.4,87,500/- under an agreement of sale dated 03.08.2005. At the time of the said transaction, Respondent No.2, being the wife of Respondent No.1,

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prepared a list of outstanding debts of her family, but Respondent No.1, in collusion with Respondent No.2, got executed a registered sale deed dated 19.08.2005 in favour of the petitioner for a consideration of Rs.1,65,000/- . It is further averred that the plaint schedule property was handed over to the petitioner and he cultivated the same. Respondent Nos.3 and 4 are minor children of Respondent Nos.1 and 2. Respondent Nos.5 to 7 are set up by Respondent No. 1 as tenants of the plaint schedule property and also filed a case against the petitioner under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner is a bona fide purchaser of the plaint schedule property for valuable consideration from Respondent No.1. Respondent No.1 being the father/manager of the family, executed the sale deed in favour of the petitioner for the benefit of the minors, who are respondent Nos.3 and 4, and therefore, the same is binding on Respondent Nos.3 and 4 also. He further stated that Respondent Nos.1 and 2, without any manner of right, are preventing him from enjoying the fruits of the land purchased by him. Therefore, he filed the I.A., seeking the relief as stated above.

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3. Respondent No.1 was set ex parte before the Court below.

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4. Respondent Nos.2 to 4 filed counter denying the averments made in the petition. They admitted that the plaint schedule property fell to the share of Respondent No.1 in the family partition and he is the absolute owner of it, but denied that Respondent No.1 got Ac.3.36 cents of land towards his share. Respondent No.1 sold away Ac.4.62 cents of land in Venumbaka Village.

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Respondent Nos.1, 3 and 4, being the members of joint family, are entitled to 1/3^rd share each in the plaint schedule property. After the death of his father, Respondent No.1 addicted to vices like gambling, drinking liquor and completely neglected to maintain Respondent Nos.2 to 4. After knowing the sale transaction covered by registered sale deed dated 19.08.2005, respondent Nos.3 and 4 filed O.P.No.105 of 2008 in the Court of Senior Civil Judge, Gudur, informa pauperise and for partition and separate possession of 2/3^rd share in the petition schedule property. It is further stated that the petition schedule property is still in possession and enjoyment of Respondent Nos.1,3 and 4 and the same is not delivered to the petitioner. It is stated that the petitioner also filed O.S.No.322 of 2007 in the Court of Junior Civil Judge, Sullurpet, against Respondent Nos.1 and 2 and the brother of Respondent No.2, for permanent injunction and the same was not pressed and subsequently, said suit and filed O.S.No.100 of 2010. It is further stated that the consideration under the sale agreement dated 03.08.2005 is Rs.4,87,500/-, whereas the consideration under the registered sale deed dated 19.08.2005, is Rs.1,65,000/- and therefore, the said agreement of sale dated 03.08.2005 was created by the petitioner with antedate on a stamp paper worth Rs.20/- and the same is not admissible in evidence for want of proper stamp duty and registration and therefore, there are no grounds to appoint a receiver to manage and administer the plaint schedule property.

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5. Before the Court below, on behalf of the petitioner, none

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were examined, however, Exs.A1 to A24 and Exs.X1 and X2 were got marked. On behalf of the respondents, none were examined, however, Exs.B1 to B5 were got marked. After hearing the counsel on either side and after going through the evidence on record, the Court below dismissed the I.A., holding that if receiver is appointed, it would cause prejudice to the rights of the parties.

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6. Heard both sides and perused the material on record.

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7. It is not in dispute that the plaint schedule property fell to the share of Respondent No.1 in the family partition. There is an agreement of sale dated 03.08.2005 for a sum of Rs.4,87,500/-, whereas another registered sale deed dated 19.08.2005, for a sum of Rs.1,65,000/- executed by Respondent No.1 in favour of the petitioner pertaining to the same plaint schedule property. According to Respondent Nos.2 to 4, earlier sale agreement dated 03.08.2005 was created by the petitioner with antedate on a stamp paper worth Rs.20/- and there is no reference of the said agreement of sale in the registered sale deed dated 19.08.2005. That apart, O.P.No.105 of 2008 is filed by respondent Nos.3 and 4 for partition and separate possession of 2/3^rd share of the plaint schedule property and the same is pending.

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8. In the background of the respective contentions, it is pertinent to refer to the order of the Court below for proper adjudication of the matter. A perusal of the impugned order, it was observed that;

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“When the five requirements embodied in the words ‘just and convenient’ in Order 40 Rule 1 CPC are fulfilled by the facts of the case

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under consideration and the Hon’ble Judge enumerated as follows:

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(1) The appointment of receiver pending a suit is a matter resting in the discretion of the Court;

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(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit;

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(3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration;

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(4) An order appointing a receiver will not be made when it has the effect of depriving a defendant of a ‘ de facto possession’ since that might cause irreparable wrong. It would be different when the property is shown to be ‘in medio’ that is to say, in the enjoyment of no one; and

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(5) The Court on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.

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9. The order impugned shows that the petition schedule property is still in possession and enjoyment of respondent Nos.1 to 4 as per the Adangals filed by them for the period 1415 and 1419 Fasli and also cist receipts. Appointment of a receiver pending the suit is a matter of discretion of the Court and unless the petitioner shows reasonable grounds, the Court should not grant such relief.

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10. A perusal of the material on record shows that the petitioner has not fulfilled the above conditions. His only case is that respondent Nos.1 and 2 are preventing him from enjoying the possession of the land. There is a litigation between the petitioner and respondent Nos.5 to 7 with regard to tenancy of land and the

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petitioner has not pressed the suit filed by him for permanent injunction. Admittedly, O.P.No.105 of 2008 filed by respondent Nos.3 and 4 for partition and separate possession is pending.

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11. Therefore, there is multiplicity of litigation and it cannot be determined against either of the party, which requires full-fledged enquiry to consider the rights of the parties. If the receiver is appointed, it would directly affect the person who is in actual possession of the property and there is every likelihood to oust him from the possession of the property.

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12. In any view of the matter, as the grounds urged by the petitioner do not fall within the ambit of Order XL Rule 1 of CPC and also in order to avoid multiplicity of the litigation, the Court below has came to the correct conclusion while dismissing the I.A. and thus, the impugned order is sustainable and there are no grounds to interfere with the same. The appeal is devoid of merits and liable to be dismissed.

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13. In the result, the Civil Miscellaneous Appeal is dismissed. No order as to costs.

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GHULAM MOHAMMED, J

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_______________ K.S.APPA RAO, J

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Date:05.03.2012 sj

Nallu Harinath v. Muppala Narayana Reddy

Case brief

What is this about?

What did the court decide?

Nallu Harinath v. Muppala Narayana Reddy

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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