Punjab-Haryana High Court
S.C.Bhalla vs Rajinder Kaur Sandhu And Others on 8 August, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
Civil Revision No.4683 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
1. Civil Revision No.4683 of 2010 (O&M)
S.C.Bhalla .....petitioner
v.
Rajinder Kaur Sandhu and others
....Respondents
2. Civil Revision No.7295 of 2010 (O&M)
Dr.Ajay Aggarwal and another
.....petitioner
v.
Smt.Usha and others
.....Respondents
Date of Decision: August 8, 2011
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Sumit Mahajan, Sr.Advocate with
Mr.Vaibhav Sehgal, Advocate
for the petitioner in Civil Revision No.4683 of 2010.
Mr.Rajiv Atma Ram, Sr.Advocate with
Mr.Arjun Partam Atma Ram, Advocate and
Mr.R.S.Mann, Advocate
for respondents no.1 to 6.
Mr.M.L.Sarin, Sr.Advocate with
Mr.Nitin Sarin, Advocate
for respondents no. 8 to 9 and petitioners in C.R.No.7295 of
2010.
Mr.Mohinder Nain, Advocate
for respondents no.10 to 13.
.....
RAM CHAND GUPTA, J.
Both the aforementioned revision petitions filed under Article 227 of the Constitution of India read with Section 115 of the Code of Civil Civil Revision No.4683 of 2010 (O&M) -2- Procedure (hereinafter to be referred as the `Code') are against order dated 24.5.2010, passed by learned Additional District Judge, Chandigarh, in Civil Miscellaneous Appeal No.18 of 2.5.2006 allowing appeal filed by respondent-plaintiff through her legal representatives against order dated 4.4.2006 passed by learned Civil Judge, Junior Division, Chandigarh, vide which applications filed under Order 40 Rule 1 and under Order 39 Rules 1 and 2 of the Code by respondent-plaintiff were disposed of.
Briefly stated, defendant no.3-Bhupinder Singh was full owner of shop-cum-office No.40, Sector 7C, Chandigarh, i.e., the premises in dispute. He had sold specific shares of that property to different persons at different times. There is no dispute that at present, the present petitioners alongwith respondent-plaintiff and other respondents-defendants are co- owners in the entire property in the ratio mentioned below:-
(i)Smt.Rajinder Kaur -plaintiff (since deceased) and now represented by her legal representatives. 25%
(ii)Gurbhajan Kaur, respondent-defendant no.1 12.5%
(iii)Prabhsharan Singh Sandhu, respondent-defendant no.2 12.5%
(iv)Bhupinder Singh, defendant no.3 (since sold to present petitioner-S.C.Bhalla, after passing of ad interim order by learned trial Court and during pendency of Civil Miscellaneous Appeal against the said order before learned Additional District Judge, Chandigarh). 1%
(v) Ajay Aggarwal, defendant no.4 17%
(vi)Neelam Aggarwal, defendant no.5 17%
(vii)Amarnath Singla, respondent-defendant no.6 3.75%
(viii)Laxmi Devi, respondent-defendant no.7 3.75%
(ix)Meena Singla, respondent-defendant no.8 3.75%
(x)Seema Rani, respondent-defendant no.9 3.75% Respondent-defendant no.10 was a tenant in the half portion on the ground floor, adjacent to SCO No.41, Sector 7-C, Chandigarh, which was leased out to him on monthly rent of `1,900/- by defendant no.3, who Civil Revision No.4683 of 2010 (O&M) -3- filed a suit for possession by way of ejectment in the Court of Civil Judge, Senior Division, Chandigarh, against him, which was dismissed by learned trial Court and, however, appeal filed by him was accepted and respondent-
defendant No.10 was ordered to be ejected. Tenant filed regular second appeal before this Court, which was dismissed and he was directed to vacate the premises in dispute within a year from the date of order and was also directed to pay future charges for use and occupation @ `5,000/- per month. Defendants no.6 to 8 remained in possession of the other portion of premises in dispute sometimes by way of self occupancy and sometimes through tenants inducted by them. Defendants no.4 and 5, who are co- owners to the extent of 34% share have been continuing in possession of first floor and second floor alongwith small portion underneath the stair- case of the premises in dispute and now they have rented out the same to respondents-defendants no.12 to 14. Further case of respondent-plaintiff is that since defendant no.3 has taken possession of premises in dispute from respondent-defendant no.10, pursuant to ejectment order passed by this Court, hence, he is occupying the area much more than his share. Further plea has been taken that respondent-plaintiff and respondents-defendants no.1 and 2, who jointly owned 50% share in the entire property are entitled to the rent paid to respondents-defendants no.3 to 9 payable by defendants no.10 to 14 and, however, they are not getting any fruit of their share of the property in dispute.
The present suit filed by respondent-plaintiff is for a decree for partition of the premises in dispute by metes and bounds and if the partition is barred by any law and otherwise is not possible, then the entire premises Civil Revision No.4683 of 2010 (O&M) -4- be auctioned amongst the co-owners/share holders and if auction amongst the co-owners and share holders is not possible then the entire premises be put to an open auction and the sale proceeds be distributed amongst the co- owners and share holders as per their respective shares alongwith decree for permanent injunction restraining defendants no.3 to 9 from selling, alienating their share and from letting out or parting with the possession directly or indirectly and from further creating any kind of charge/encumbrance of the property in their possession to another person before the actual partition of the property takes place and further a decree for rendition of accounts directing, defendants no.3 to 9 to surrender the accounts of rent collected by them from various tenants and further a decree for injunction restraining defendants No.3 to 9 from receiving rent from respondents-defendants no.10 to 14 and directing them to deposit the rent in the Court with further direction to defendant no.3 to pay mesne profits @ `150/- per sq.ft. per month for the area in his occupation.
Alongwith the suit, two applications have been filed by respondent-plaintiff, i.e., one under Order 39 Rules 1 and 2 read with Section 151 of the Code and another under Order 40 Rule 1 read with Order 39 Rules 1 and 2 and Section 151 of the Code.
Prayer is made that defendant no.3 be restrained from collecting/receiving rent from respondent-defendant no.10 and further he be restrained from letting out or parting with possession of any part of the building in dispute to anybody else, in any manner, directly or indirectly and also directing respondent-defendant no.10 to deposit the rent/charges as per order of this Court dated 6.4.2005 and also restraining other co-sharers not Civil Revision No.4683 of 2010 (O&M) -5- to part with their possession or let out any part to anybody directly or indirectly during the pendency of the suit. Vide second application for appointment of a Receiver, it was prayed that defendant no.3 be restrained from taking possession of the premises in dispute from defendant no.10 and further letting out the same to any tenant or to any other person as and when falling vacant and further restraining him for claiming any rent from any other existing tenants and further prayer for appointment of a Receiver to manage the suit property by taking possession from defendant no.10 or other tenants, whosoever vacates their tenancy premises in the suit property and to receive rents and other incomes from the occupants of the suit property and to keep accounts for the same and to do all other acts, which are necessary for the proper management of the suit property.
The suit filed by the respondent- plaintiff as well as applications for ad interim injunction order and for appointment of a Receiver was supported by defendants no.1 and 2, who were also having 25% share in the entire property, however the same were contested by present petitioners and defendants no.3 to 9 by filing separate written statements. Inter alia plea has been taken that the present suit for partition is not maintainable in view of Rule 14 of the Chandigarh Sales of Sites and Building Rules, 1960, framed under the Capital of Punjab Development & Regulation Act, 1952, as the partition or fragmentation of sites and building is not permissible, in any manner, in Chandigarh. Specific plea has been taken by petitioners-defendants no.4 and 5 that actual vacant and physical possession of first floor and second floor including stairs and cabin on the ground floor was handed over to them at the time of execution of agreement Civil Revision No.4683 of 2010 (O&M) -6- to sell and the sale deed in their favour by the previous co-owners, as they were in exclusive possession as owners of the same and since then they have been continuing in possession of the same as owners.
Plea was taken by defendant no.3 that he alone had contested the suit for ejectment of the premises in possession of respondent-defendant no.10 and that even during pendency of regular second appeal before this Court in the ejectment proceedings, an application under Order 1 Rule 10 of the Code was filed by present respondent-plaintiff and respondents- defendants no.1 and 2 for impleading them as party, which was dismissed by this Court and ejectment order was passed in his favour alone and hence, he is entitled to take possession of the premises in dispute from respondent- defendant no.10 and also entitled to receive rent/occupation charges from him.
Both the applications were decided by learned trial Court vide order dated 4.4.2006 vide which respondent-defendant no.3 was directed to keep proper accounts of the amount, so realized by him regarding the property in dispute. It was further directed that in case respondent- defendant no.3 lets out the premises to anyone after obtaining possession, he would intimate the Court in advance with complete particulars of the person and will also intimate such person that he would be bound by the final outcome of the partition proceedings and hence, this arrangement was made to take care of rights of other co-owners. However, while declining prayer for appointment of a Receiver of respondent-plaintiff, defendant no.3 and petitioners-defendants no.4 and 5 and other defendants were also directed to keep the proper accounts of the amount, so realized by them Civil Revision No.4683 of 2010 (O&M) -7- regarding the property in dispute like rent etc. and in case defendant no.3 lets out demised premise to anyone after obtaining the possession, he would intimate the Court in advance with complete particulars of the person and would also intimate such person that he would be bound by the final outcome of the partition proceedings. It was further directed by learned trial Court that defendant no.3 and the other co-owners would also not create any kind of charge on the property in dispute so that the rights of parties after partition can be protected.
Respondent-plaintiff filed civil miscellaneous appeal against the said order before learned Additional District Judge, Chandigarh. It may be mentioned here that after passing of order dated 4.4.2006, by learned trial Court and during pendency of civil miscellaneous appeal No.18 of 2.5.2006 before learned Additional District Judge, Chandigarh, respondent- defendant no.3 transferred his remaining 1% share in the entire property in dispute in favour of present petitioner-S.C.Bhalla, who moved an application before learned trial Court for impleading him as a party, which was allowed by learned trial Court vide order dated 1.11.2008. Order dated 4.4.2006 passed by learned trial Court was modified by learned Additional District Judge, Chandigarh, vide impugned order dated 24.5.2010 mainly on the ground that after order dated 4.4.2006, Bhupinder Singh-respondent- defendant no.3, who is owner of 1% share in the entire property in disregard to the orders of trial Court had not rendered any accounts of rent realized and rather in breach of trust has alienated the said 1% share and has parted with possession of the half portion of the ground floor to the vendee, namely, S.C.Bhalla, present petitioner, and hence, respondent-defendant Civil Revision No.4683 of 2010 (O&M) -8- no.3-Bhupinder Singh by the sale of property and by parting with possession has breached the order passed by learned trial Court and hence restraint order passed by learned trial Court against him restraining him to collect rent and receive rent from respondent-defendant no.10 and further to let out or part with possession of any part of the suit property, in any manner, has become infructuous. Hence, the following order was passed by learned Additional District Judge, Chandigarh, which reads as under:-
"8.Now the only question to be decided by this court is as to whether receiver can be appointed who can collect the rent from the tenants or not? It is further to be noted that appellant-plaintiff is admittedly the owner of 25% share and defendants no.1 and 2 are also owners in equal share to the extent of 25% share of the suit property. When defendant No.3 has already parted with the possession, this Court is of the view that the receiver is required to be appointed to make the management of the property in hand and to receive the rent from all the tenants including the portion with the vendee of Bhupinder Singh namely Subhas Chand Bhalla. So Shri Rajesh Khurana Advocate is hereby appointed as Receiver in this case with the direction to take management and possession of the suit property, to realize the rent from the existing tenants and to let out the vacant possession with the prior approval of the learned trial Court, to hold the account in a Nationalized Bank with regard to the rent realized and he should convert the same in a fixed deposit when the amount so realized exceed a sum of Civil Revision No.4683 of 2010 (O&M) -9- `2 lacs, to keep the account of the amount realized from each tenant, to deduct his remuneration/commission and to intimate the court with regard to the initiation of any civil/criminal proceedings, which according to him are liable to be taken. His fee is assessed at the rate of `7,000/- per month which he will deduct from the rent realized by him from the tenants. He will act under the Superintendence of the learned trial Court. With these observations, the appeal stands partly allowed. File of the lower Court be returned. Appeal file be consigned."
I have heard learned counsel for the parties and have gone through the whole record carefully.
It has been contended by learned senior counsel for petitioner- S.C.Bhalla that though he was impleaded as a party in the main suit by learned trial Court during pendency of civil miscellaneous appeal before learned Additional District Judge and however, he was not impleaded as a party by respondent-plaintiff in the said civil miscellaneous appeal and the impugned order was passed by learned Additional District Judge without hearing him. It is further contended that he has taken possession of premises in dispute from previous owner, i.e., respondent-defendant no.3 and his possessory rights have been sought to be illegally taken away in view of the impugned order. It is further contended that learned trial Court has not restrained defendant no.3-Bhupinder Singh from alienating his share in the property in dispute and hence it is contended that learned Additional District Judge has erred in observing that he has sold his remaining 1% share in the property to him in violation of the injunction order passed by Civil Revision No.4683 of 2010 (O&M) -10- learned trial Court. It is also contended that for appointment of a Receiver under Order 40 Rule 1 of the Code, respondent-plaintiff was to show that there was an urgent situation like emergency and, however, no such situation exists in the present case. It is also contended that learned Additional District Judge, Chandigarh, has committed illegality in interfering with the order passed by learned trial Court refusing to appoint a Receiver.
Learned senior counsel for the petitioners-defendants no.4 and 5 has vehemently contended that petitioners-defendants no.4 and 5 have been continuing in possession of first floor, second floor and a cabin under the stair on the ground floor since the time of their purchase and now they are in possession of the same through the tenants inducted by them and they are receiving rents and maintaining accounts and are complying with the order passed by learned trial Court and are ready to render the accounts of the rent received by them to learned trial Court. It is also contended that though they are co-owners to the extent of 34% share in that property, however, it is yet to be decided by learned trial Court as to whether the actual possession is more than their share or not. It is further contended that they have not committed any breach of the order passed by learned trial Court. It is further contended that dispute, if any, is between respondent- plaintiff and defendant no.3, who sold his 1% share during pendency of the suit to present petitioner-S.C.Bhalla and also parted possession of the half share of the entire property in dispute and who has allegedly committed breach of the order passed by learned trial Court. It is further contended that however, learned Additional District Judge has committed illegality in Civil Revision No.4683 of 2010 (O&M) -11- appointing a Receiver regarding the entire property including the portion of the property in dispute continuing in possession of petitioners-defendants no.4 and 5 without giving any reason as to why a Receiver has been appointed regarding the property which has been continuing in possession of petitioners-defendants no.4 and 5. It is also contended that they are managing the said property properly and renting out the same at an appropriate rent and have not committed any act of bad faith regarding management of the property in their possession warranting appointment of a Receiver. It is also contended that law is well settled that possession of one co-sharer is possession on behalf of all and hence, petitioners-defendants No.4 and 5 cannot be ousted from the premises in dispute by appointing a Receiver during pendency of the partition proceedings.
On the other hand it has been contended by learned senior counsel for respondent-plaintiff that when civil miscellaneous appeal was filed, defendant no.3 had not alienated his 1% share in the property in dispute and had not parted with possession and hence, he alone was impleaded as a party. It is further contended that it was only during pendency of the civil miscellaneous appeal that he alienated his 1% share in favour of present petitioner-S.C.Bhalla, who also filed an application before learned trial Court for impleading him as a party. It is further contended that it cannot be said that the order was passed without hearing him as the counsel, who had filed application for impleading him as a party before learned trial Court, namely, Shri Kailash Chander, is the same counsel, who also appeared for defendant No.3, as is clear from application, Annexure P5, filed under Order 1 Rule 10 of the Code for impleading him as a party and Civil Revision No.4683 of 2010 (O&M) -12- order Annexure P6 passed by learned trial Court dated 1.11.2008. It is also contended that the same counsel also appeared and argued the case when the impugned order Annexure P8, dated 24.5.2010 was passed by learned Additional District Judge, Chandigarh, and hence, it cannot be said that the order was passed without hearing the petitioner.
It is further contended that admittedly defendant no.3 had left only with 1% share in the property in dispute and, however, he had taken possession of 50% share of the entire property from respondent-defendant No.10. It is also contended that though respondent-plaintiff and respondents-defendants no.1 and 2 are owners to the extent of 50% in the entire property, however, they are not getting any share out of the rent being collected by the other co-owners including the present petitioner- S.C.Bhalla, who has purchased only 1% share in the entire property from previous owner, i.e., respondent-defendant no.3. He has also contended that he has also made offer to this Court, as is reflected in order dated 29.7.2010 that respondent -plaintiff and respondents-defendants no.1 and 2 are ready to pay rent of `1,50,000/- per month for the portion which is in possession of petitioner-S.C.Bhalla presently and, however, the said offer was not accepted by the petitioner. Hence, it is contended that no illegality has been committed by learned Additional District Judge in appointing a Receiver to manage the property in dispute and receive the rent from all the tenants including portion in possession of vendee of respondent-defendant no.3, namely, present petitioner, S.C.Bhalla.
Admitted facts of the case are that respondent-defendant no.3 was owner of the entire property in dispute, specific share of which was Civil Revision No.4683 of 2010 (O&M) -13- sold by him to different persons from time to time. He was left with only 1% share of the entire property when he was fighting litigation for dispossession of one of the tenants, i.e., respondent-defendant No.10. He succeeded in the said litigation and ejectment order against respondent- defendant No.10 was passed by this Court in regular second appeal and respondent-defendant No.10 was also directed to hand over the possession of the premises in dispute to respondent-defendant No.3 and also directed to pay arrears of rent and future charges for use and occupation of the said premises. Possession of about half portion of the present property was taken by respondent-defendant No.3 from respondent -defendant No.10 in pursuant to the said order. Respondent-plaintiff and respondents-defendants No.1 and 2, who are co-owners to the extent of 50% share in the entire property are not in possession of any portion of the property in dispute and are also not getting any share of the rent being collected by other co-owners. Hence, they filed the present suit for partition of property by metes and bounds.
Law has been well settled by Full Bench of this Court in Bhartu v. Ram Sarup, 1981 PLJ 204 regarding rights and liabilities of co- sharers inter se. Possession of joint property by one co-owner is, in the eye of law, possession of all even if all but one are actually out of possession. Relevant paragraphs of the same read as under:-
"4. The inter se rights and liabilities of the co-sharers were settled by a Division Bench of this Court in a very detailed judgment in Sant Ram Nagina Ram v. Daya Ram Ngina Ram, AIR 1961 Pb. 528 and the following propositions, inter Civil Revision No.4683 of 2010 (O&M) -14- alia, were settled:-
(1)A co-owner has an interest in the whole property and also in every parcel of it.
(2)Possession of joint property by one co-owner, is in the eye of law, possession of all even if all but one are actually out of possession.
(3)A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4)The above rule admits of an exceptio n when there is ouster of a co-owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other.
(5)Passage of time does not extinguish the right of the co-
owner who has been out of possession of the joint property except in the event of ouster or abandonment.
(6)Every co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition.
It is evidence from the said propositions that when a co- sharer is in possession exclusively of some portion of Civil Revision No.4683 of 2010 (O&M) -15- the joint holding, he is in possession thereof as a co- sharer and is entitled to continue in its possession if it is not more than his share till the joint holding is partitioned. It is also undisputed that a vendor cannot sell any property with better rights than he himself has. Consequently, when a co-sharer sells his share in the joint holding or any portion thereof and puts the vendee into possession of the land in his possession, what he transfers is his right as co-sharer in the said land and the right to remain in its exclusive possession till the joint holding is partitioned amongst all the co-sharers. It was on this basis that a Division Bench of the Lahore High Court in Sukhdev v. Parsi plaintiff and others, AIR 1940 Lah. 473 held that a co-sharer who is in exclusive possession of any portion of a joint khata can transfer that portion subject to adjustment of the rights of the other co-sharers therein at the time of partition and that other co-sharer's rights will be sufficiently safeguarded if they are granted a decree by giving them a declaration that the possession of the transferees in the lands in dispute will be that of co-sharers, subject to adjustment at the time of partition. As is well-known, a declaratory decree is nothing but a judicial recognition of the existing rights and such a decree does not tend to create any rights. The passing of the declaratory decree, Civil Revision No.4683 of 2010 (O&M) -16- therefore, shows beyond doubt that what the vendee gets in the transfer from a co-sharer is the right of that co-sharer and not exclusive ownership of any portion of joint land. It is also undisputed that the right of pre- emption is available not only when a co-sharer sells the whole of his share but also when he sells a portion thereof. When a co-owner describes the land sold out of his share not in terms of a fractional share of the holding but in terms of measurement and khasra numbers even then he sells nothing but his rights as co- sharer in the joint holding, i.e., a portion of his share therein. The share in the joint holding according to the dictionary meaning also does not mean a fractional share and instead means a definite portion of property owned by a number of persons in common.
5. The rights of a transferee from a co-owner are not entirely dependent on judicial decisions but are regulated by Section 44 of the Transfer of Property Act which provides tht where one or two or more co-owners of the immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to Civil Revision No.4683 of 2010 (O&M) -17- enforce a partition of the same but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. According to this statutory provision also what transferee gets is the right of the transferor to joint possession and to enforce a partition of the same irrespective of the fact whether the property sold is fractional share or specified portion, exclusively in possession of the transferor. Again it cannot be disputed that when a co-sharer is in exclusive possession of the specified portion of the joint holding, he is in possession thereof as a co-sharer and all the other co-sharers continue to be in its constructive possession. By the transfer of that land by one co-
owner, can it be said that other co-sharers cease to be co-sharers in that land or to be in its constructive possession. The answer obviously would be in the negative because any of the other co-sharers can either seek a declaration from the Court as held in Sukh Dev's case (supra) that the vendee is in possession only as a co-sharer or can initiate proceedings for partition of the joint holding including the land transferred. If the other co-sharers continue to be co-sharers in the land transferred even though comprised of specific khasra numbers how can it be said that what is sold is something other than the share out of the joint holding. Civil Revision No.4683 of 2010 (O&M) -18- That the sale of specific portion of land out of joint holding by one of the co-owners is nothing but a sale of a share out of the joint holding, would be further elucidated if we take the example of a sale where a co-
owner sells the land comprised of a particular khasra number which is not in his possession but is within his share in the joint holding. For example, 'A' who is joint owner of one-fourth share in the joint holding measuring 100 bighas sells the land measuring 10 bighas bearing khasra numbers 'X' and 'Y' which are not in possession. On the basis of this sale, the vendee can neither claim himself to be a transferee of the said land nor can he claim its possession from other co-owners in possession thereof. The effect in law of such a transfer would be only that the vendee shall be entitled to 10 bighas of land out of the share of his vendor at the time of partition or prior thereto to a decree for joint possession to the extent of the land purchased by him. Consequently, the effect in law of sale of even of specified portion of joint land is that it is only a sale of portion of share by one of the co-owners."
Hence, in the present case even if some of the co-owners are in possession of the more than their share, their possession in the eye of law is possession of all and they are bound to render the accounts at the time of partitions by metes and bounds at the instance of one of the co-owner. Civil Revision No.4683 of 2010 (O&M) -19-
So far as law regarding appointment of a Receiver under Order 40 Rule 1 is concerned, it has been observed by Hon'ble Apex Court in S.Saleema Bi v. S.Pyari Begum and another, JT 2000(7) SC 329: AIR 2000 SC 3513, as under:-
"3. We have heard learned counsel and perused the judgment. We find that the defendant is in physical possession of the property in dispute. The Receiver can only be appointed when it is just and convenient and also when there is a prima facie case in favour of the plaintiff- respondent and the case calls for taking of urgent measure like appointment of a Receiver. The High Court has not gone into these questions while appointing Receiver for the property in dispute. We, therefore, find that the appointment of the Receiver was not legally justified. We, accordingly, set aside the order of the High Court."
This Court in Ram Lal and others v. Gian Chand and others, 1996(3) PLR 695 has relied upon a judgment rendered by Hon'ble Madras High Court in T.Krisnaswamy Chetty v. C.Thangavehu Chetty and other, AIR 1955 Madras 430, wherein Hon'ble Madras High Court laid down the pre-requisites for appointment of a Receiver which are enumerated below:-
"(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. (2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very Civil Revision No.4683 of 2010 (O&M) -20- excellent chance of succeeding in the suit.
(3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some 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.
(4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a `de 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.
And (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." Hence, in view of these principles enunciated by Hon'ble Madras High Court and in view of law laid down by Hon'ble Apex Court in S.Saleema Bi's case (supra) a Receiver can only be appointed when it is just and convenient and also when there is a prima facie case in favour of the plaintiff and the case calls for taking of urgent measures like appointment of a Receiver.
In the light of this legal proposition this Court is to see as to whether learned Additional District Judge, Chandigarh, was justified in Civil Revision No.4683 of 2010 (O&M) -21- interfering with the order passed by learned trial Court refusing to appoint a Receiver to manage the property in dispute.
So far as objection raised by learned senior counsel for the petitioner-S.C.Bhalla that the impugned order was passed without hearing him is concerned, the same is without any basis. There is force in the argument of learned senior counsel for the respondent-plaintiff that counsel for the petitioner-S.C.Bhalla, who filed application under Order 1 Rule 10 of the Code on his behalf before learned trial Court was heard by learned Additional District Judge, Chandigarh, before passing this order as is clear from the said order.
Second contention raised by learned senior counsel for the petitioner that alienation by respondent-defendant no.3 in favour of present petitioner after passing of an order by learned trial Court dated 4.4.2006 and during pendency of civil miscellaneous appeal before learned Additional District Judge, Chandigarh, was not in violation of the order also cannot be accepted. Learned trial Court vide order dated 4.4.2006 has specifically restrained respondent-defendant no.3 and other co-owners from creating any kind of charge on the property in dispute so that the rights of the parties after partition can be protected. Parties were also directed to maintain proper account of the amount realized by them from the tenants and also directed to intimate the Court in advance with complete particulars of the persons to whom premises are rented out during pendency of the suit and also intimate that person that he would be bound by outcome of the partition proceedings. Hence, when the order is read as a whole, it cannot be said that respondent-defendant no.3 was not restrained from alienating his Civil Revision No.4683 of 2010 (O&M) -22- remaining 1% share in the property in dispute to anybody else during pendency of the suit. It has been rightly observed by learned Additional District Judge, Chandigarh, while passing the impugned order that by transferring his remaining 1% share in favour of present petitioner, S.C.Bhalla, by respondent-defendant no.3 and by parting with possession of half of the property in dispute to petitioner-S.C.Bhalla, the order passed by learned trial Court has become infructuous.
Hence, there were sufficient reasons for learned Additional District Judge, Chandigarh, to have appointed a Receiver to manage and collect the rent regarding the property, which was in possession of respondent-defendant no.3 at the time of passing of order by learned trial Court and possession of which was handed over by him to present petitioner-S.C.Bhalla during pendency of civil miscellaneous apeal. However, so far as the order passed by learned Additional District Judge, Chandigarh, for appointing a Receiver regarding the property which is in possession of the present petitioners-defendants no.4 and 5 and which is being managed by them, the said order has been passed without any reason. The dispute primarily is also between respondent-plaintiff, respondents- defendants no.1 and 2 on the one hand and respondent-defendant no.3 now present petitioner-S.C.Bhalla, on the other hand, who being owner of only 1% share in the disputed property is in possession of 50% of the entire property, whereas respondent-plaintiff and respondents-defendants no.1 and 2 are not getting anything from the property in dispute. Petitioners- defendants no.4 and 5 are complying with the order passed by learned trial Court and they are ready to maintain the accounts of the rent collected by Civil Revision No.4683 of 2010 (O&M) -23- them and ready to supply the same to learned trial Court so that the proper order be passed at the time of final decision of the case.
Hence, in view of the above discussion, Civil revision No.4683 of 2010 filed by petitioner-S.C.Bhalla is devoid of any merit and the same is, hereby, dismissed. However, Civil Revision No.7295 of 2010 filed by petitioners-defendants no.4 and 5 is accepted.
As a consequence thereof, the impugned order passed by learned Additional District Judge, Chandigarh, is modified to the extent that the order appointing a Receiver is applicable to the portion of the property in dispute which was earlier in possession of respondent-defendant no.3 and possession of which has now been handed over by respondent-defendant no.3 to petitioner-S.C.Bhalla during pendency of the civil miscellaneous appeal and the said order will be having no applicability to the portion of the premises in dispute presently in possession of petitioners-defendants no.4 and 5.
It has been stated by learned counsel for the parties that the present litigation is pending since the year 2005. Hence, learned trial Court is directed to expedite the decision of present suit and efforts be made to conclude the same within six months from the next date of hearing by giving short adjournments.
However, it is made clear that nothing observed herein shall be construed to have any bearing on the decision of this case on merit by learned trial Court.
8.8.2011 ( Ram Chand Gupta )
meenu Judge
Note: Whether to be referred to Reporter? Yes/No.