Bhawarji Dattak vs Rukmani Bai - 1991 Supreme(MP) 757

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : K.B. Joshi
For the Respondent: V.N. Joshi

Headnote:(1) Civil Procedure Code, 1908 – O. 39, R. 1 and 2 – plaintiff unable to lay down any foundation for apprehension of irreparable injury to him – balance of convenience also not in his favour – – no interference called for in the order refusing temporary injunction.
       (2) Civil Procedure Code, 1908 – O. 40, R. 1 – principles relating to appointment of receiver – bona – fide possession of person is not to be disturbed by appointment of receiver unless there is substantial ground for interference – no error committed in refusing to appoint receiver.
        Short Note
       1. The plaintiff has filed this suit for declaration of his title over the suit house, being the adopted son of the deceased Inderbai, for cancellation of the two Wills alleged to have been made by the deceased Inderbai in favour of defendant No. 1 and defendant No. 3 respectively, in respect of the suit house and for delivery of possession of the suit house by defendants No. 1 to 3 and for mesne profits recoverable from these defendants and other defendants who are tenants.
       2. The plaintiff also filed two applications alongwith the plaint, one for temporary injunction and the other for appointment of receiver in respect of the suit house.
       3. The learned trial Court has after hearing the parties, dismissed both these applications by the impugned order.
       Held : The prayer in the application for temporary injunction is that the defendants No. 1 to 3 be restrained from damaging or destroying the suit house or transferring the same in any manner and that the tenants – defendants 4 to 8 be restrained from paying any rent to defendants No. 1 to 3.
       4. It appears that the appellant – plaintiff has not been able to lay any foundation for his allegation that the defendants No. 1 to 3 are likely to cause damages to the disputed property or to transfer the same. The defendants are in possession of the suit house since before the death of Inderbai whom the plaintiff claims to have succeeded as an adopted son. The learned trial Court after hearing the parties, found that the plaintiff had no prima facie case in his favour and the balance of convenience was also not in his favour and there is no apprehension of irreparable injury to him. The application for temporary injunction was, therefore, dismissed.
       5. Learned counsel for the appellant has not been – able to show as to how on a consideration of the three principles underlying the question of grant of temporary injunction, the order refusing temporary injunction is bad. As such, the order refusing temporary injunction does not call for interference and as such, this appeal is liable to be dismissed.
       6. As regards the other appeal (Misc. Appeal No. 190/81) directed against an order rejecting the plaintiff's application for appointment of receiver in respect of the suit property, the learned counsel for appellant – plaintiff has challenged the rejection and submitted that the plaintiff was recorded as a co – owner with Inderbai in respect of agricultural lands during the latter's life – time on the basis that he was the adopted son of Mehtabsingh and as such, the plaintiff's interest in the suit property should have been recognized in respect of the suit house as well and the learned trial Court should have safe – guarded the plaintiff's interest by appointing a receiver to manage and protect the property and to collect the rents from the tenants.
       7. In the instant case the defendants No. 1 Rukhmani Bai who claims to be the owner of the suit house by virtue of the will from the deceased Inderbai, is in possession of the suit house according to her. The learned counsel for Rukhmanibai has submitted that the defendant no. 1 Rukhmanibai is staying in a portion of the suit house and is recovering rents from the tenanted portions of the suit house. In view of the claim of the plaintiff on the basis of alleged adoption by deceased Mehtabsingh and the counter claim of the defendant No. 1 of being the owner of the suit house by virtue of an alleged will from the deceased Inderbai widow of Mehtabsingh, the learned trial Court does not appear to have committed any error if he refused to appoint a receiver of the property in possession of the defendants.
       8. Learned counsel for respondent – defendants has placed reliance on a decision of this Court in Abdul Salim Qureshi v. Mohammed Habib (1983 MPLJ Note – 35) wherein the principles relating to the appointment of receiver have been enumerated. One of the principles enunciated therein is that when a person is in bona fide possession of the property in question, his possession should not be disturbed by appointment of receiver, unless there is some substantial ground for such interference, such as a well founded fear that the property in suit will he dissipated or other irreparable mischief may be done unless the Court appoints a receiver. In my opinion, the possession of the defendants is bona fide since before the death of the deceased Inderbai and it does not appear just and convenient to appoint a receiver of the suit property in the circumstances of the case and the learned trial Court has committed no error in refusing to appoint a receiver. 1983 MPLJ – SN 35 relied on. Appeal dismissed.