The main legal point established is that in Partition suits, the appointment of a Receiver is discretionary and should be based on clear evidence of deprivation of enjoyment or special circumstances like waste or decay.

1. This appeal has arised under Order 43 Rule 1 (s) of the Code of Civil Procedure against the order dated 26-7-2001 passed by Sub-Judge-III, Araria, in Title Suit No. 183/2000 whereby and whereunder the plaintiffs appellants prayer for appointment of Receiver as contemplated under Order 40 Rule 1 C. P. C. has been rejected.

2. Admittedly, the plaintiffs and the defendants are coming from the joint ancestors. Plaintiffs have claimed partition in respect of 7/26th share. According to the plaintiffs, as per averments made in the plaint as revealed from the impugned order that there was some difference in passing the joint family property jointly. But it was further claimed that about five years back the plaintiffs and the defendants have separated themselves in mess and business. But the joint family property mostly agricultural lands have not been partitioned by metes and bounds by now although, separate possessions are there. Hence, the joint family property partition was necessary.

3. The defendants have filed written statement and, according to them, there was no unity of title and the joint family had been disrupted long back and the properties had been divided amongst their coparcenors and in the Settlement records, although, the joint names were there, but in the remarks column a separate possession have been specifically mentioned. It has been further averred from the side of the defendants that there were separate dealings by the parties regarding the properties of their shares and as such the suit is liable to be dismissed.

4. A separate petition was filed under Order-40 Rule -1 C. P. C. by the plaintiffs for appointment of a Receiver on the ground that the defendants have indulged themselves in disposing the properties in excess of their shares and that by that way the suit properties are being decayed and destroyed and hence a Receiver is to be appointed.

5. The defendants have filed rejoinder stating that the plaintiffs have also indulged in selling the properties to the third parties and that none of the purchasers either from the plaintiffs or from the defendants are parties to the suit and when the purchasers have entered into possession of their purchased lands, then the appointment of a Receiver including those lands would be misnomer and rather would create some trouble.

6. Considering the cases of both the parties the learned Court below held that in the facts and circumstances no prima facie case could be made out for appointment of a Receiver and regarding wastage and decay of the property it has been further held by the learned Court below that when the plaintiffs have also indulged in the same act by selling lands to the different persons they also stand on the same footing as that of the defendants.

7. The present appeal has been preferred against the order of rejection of prayer for appointment of Receiver. The learned counsel for the appellants have submitted that when various deprivations of enjoyment of the properties to the plaintiffs are there then for such deprivations even if no case of wastage and decay could be proved, then also appointment of a Receiver can be done and in that way he has referred to the three Judgments of this court, namely, AIR 1948 Patna 195, 1976 BBCJ (HC) 521 : (AIR 1976 Patna 366) and AIR 1978 Patna, 210. Before going into the merit of the present case the principle behind appointment of receiver is required to be stated. Practically, when a case is made out of decay and destroyance of the property in lis then for saving the property the Court is to take custody of the property and then as its representative a Receiver is to be appointed who remains answerable to the Court. As provided under Order-40 Rule 1 C. P. C. by going through various decisions given by Courts in India and also the Apex Court the following principles may be enumerated when a Receiver can be appointed :

(i) it is the discretionary power of the Court, although, such discretion has to be applie