Prof. Abdus Shahid & ors. Vs. Md. Monirul Islam, (S. H. Md. Nurul Huda Jaigirdar, J.)

Case No: First Miscellaneous Appeal No. 71 of 2018

Judge: Md. Nuruzzaman, J And S. H. Md. Nurul Huda Jaigirdar, J.

Court: High Court Division,

Advocate: Mr. Md. Raziuddin Sarwar. Adv. ,

Citation: 2019(2) LNJ

Case Year: 2018

Appellant: Professor Abdus Shahid and others

Respondent: Md. Monirul Islam

Subject: Code of Civil Procedure

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

Md. Nuruzzaman, J

And

S. H. Md. Nurul Huda Jaigirdar, J.

 

Judgment on

13.08.2018

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Professor Abdus Shahid and others

. . .Defendant-Appellants

-Versus-

Md. Monirul Islam

. . .Plaintiff-Respondent.

Code of Civil Procedure (V of 1908)

Order XL, Rule 1

The learned Joint District Judge, allowed the application under Order 40 Rule (1) of the Code of Civil Procedure which calls for interference by this court inasmuch as there is no reason for appointment of a receiver in the present case, when the court did not find any mismanagement or damage to the property in question and there is an order of injunction restraining the transfer of property in question. . . .(11 and 14)

Specific Relief Act 1877 (I of 1877)

Section 42

Keeping the principles aforesaid in view could there be appointment of a receiver in a suit for declaration of title simplifier or to immovable property? The problem is how the court on the conclusion of the suit could make over possession to the party so entitled, when there is no such prayer, nor the suit framed in accordance with Section 42 of the Specific Relief Act to get complete relief.      . . . (12)

Mahammad Parial Vs. Bashir Ahmed and others. P.L.D. 1957, 625 and Krishna Deb and others Vs. Surendra Krishna Nandi and others in 34 C.W. N. 440 ref.

Mr. Md. Raziuddin Sarwar. Adv.

. . . Defendant -Appellants.

Mr. M.Ashraf Ali, Adv.

. . . For the plaintiff-Opposite party.

JUDGMENT

S. H. Md. Nurul Huda Jaigirdar,J: This instant Appeal is directed against the Judgment and Order No.33 dated 16.10.2017 passed by the Joint District Judge, 3rd Court, Dhaka in Title Suit No.75 of 2015 allowing the application for appointing receiver, the defendant as appellants prefer this instant appeal.

2.               Plaintiff filed Title Suit No.75 of 2015 in the Court of Joint District Judge,3rd Court, Dhaka for declaration of title, khas possession, permanent injunction and damage alleging, inter alia, that the disputed land was originally belonged to Haji Abdus Sobhan which  he acquired by deed of conveyance No.2637 dated 11.04.1957 from the previous owners namely Amir Uddin Dhali and Oli Mia dhali. Haji Abdus Sobhan during his lifetime by a registered deed of Wasiyatnama being No. 04 dated 03.07.1969 allocated his 10 katha land in favour of his four sons namely 1st son Professor Abdus Shahid, 2nd son Mohammad Abdur Rashid, 3rd son Mohammad Abdul Latif and 4th son Mohammad Abdul Matin. During lifetime of the said Abdus Sobhan  the said 10 Katha land  was partitioned and according to the deed of 1969 his 3rd son Abdul Latif i.e. the vendor of the plaintiff got h is 2 katha land. The vendor of the plaintiff on 24.01.2011 entered into a registered deed of agreement for sale being No.377 to sell his 2 kathas of land to the plaintiff at the total price of BDT 95,00,000( Ninety Five Lace). Accordingly the vendor received BDT 40, 00,000(Forty Lace) as advance payment from the plaintiff and erected boundary walls and constructed a tin-shade structure and brought utility connection. The land was ultimately sold on12.09.2011, upon receipt of remaining price, vide registered deed of sale being NO. 4971 and possession was handed over to the plaintiff on the same day i.e. on 12.09.2011. The plaintiff after purchase used to possess the land by constructing a tin shed house. The defendants forcefully evicted the plaintiff from the suit land. Hence the plaintiff filed the suit.

3.               The defendant No.1-3 contested the suit by filing a written statement contending inter alia that the property originally belonged to Hazi Abdus Sobhan , father of the defendant Nos.1-2 and grandfather of defendant No.3, who registered a wasiyatnama in favour of his four sons , namely,(1) Abdus Shahid (2 katha), (2) Abdus Rashid ( 2 Katha), (3) Abdul Latif ( 2 Katha), and (4) Abdul Matin ( 2 Katha) on 03.07.1969. That on 17.07.1976, Abdus Sobhan changed his earlier Wasiyatnama and executed 2nd Wasiyatnama so as to remove Abdul Latif from the list of recipients and executed the same in favour of his sons, namely, (1) Abdus Shahid, (2) Lutful Muyeed alias Sanchay(Grandson), (3) Kamranur Rashid (Grandson), (4) Abdul Matin and(5) Lutful Kabir Tushar(Grandson), son of Abdul Latif. Thereafter Alhaj Abdus Sobhan Changed his mind and executed also registered three deeds of gift on 06.01.1079 in favour of his sons (1) Abdus Shahid, (2) Abdul Matin and (3) Kamranur Rashid alias Tuhin (Grandoson), son of Abdul Rashid, measuring 7.75 katha and, accordingly, the remaining 2.25 kathas of land remained under the ownership of Hazi Abdus Sobhan, who died in the year of 1987. After death of Abdus Sobhan, the suit property i.e., 2.25 katha, was possessed by the defendants including Abdul Latif (vendor of the plaintiff). As a result, for proper management of the suit property, a partition Suit being Title Suit No. 76 of 1997 was instituted by Abdus Sahid and the heirs of Abdus Sobhan was made defendant. Abdul Latif was also a defendant of the partition suit and the suit was decreed on compromise. Thereafter, Dhaka City Khatian was prepared as per the compromise decree and accordingly, Abdul Latif (vendor of the plaintiff) got his share of 405 sft. Of land. However Abdul Latif (vendor of the plaintiff) sold 2 Kathas land to the plaintiff.

4.               The plaintiff respondent filed an application for appointment of receiver under order 40 Rule (1) of the Code of Civil Procedure alleging inter alia that the defendants appeared in suit and filed Written Statement on 03.08.2015. The suit property consists of a building and tin-shade structures where some tenants are let out to live after eviction of the plaintiff. The defendants are unlawfully collecting rent from the tenants in spite of the fact that the entire suit property is owned by the plaintiff and that since the suit property is owned by the plaintiff and the trespasser defendants are collecting the rent and misappropriating the same a Receiver is urgently needed to be appointed by the Honorable Court to collect the rents and profits thereof for protecting the interest of plaintiff and to avoid unlawful gain by the defendants and also to avoid multiplicity of other proceedings to recover the rent by separate money suit and that the Receiver may be from the officers of the Court or an Advocate who will collect the rent and deposit the same in the Court as Civil Deposit.

5.               The defendant appellant filed written objection against the application under order 40 Rule(1) of the Code of Civil Procedure contending that the defendants have  been possessing the suit land peacefully and they have also been possessing the adjoining land which they have obtained from their father and grandfather. The plaintiff had no possession over the suit property and the story of dispossession is out right false. The defendants have the chronological title and possession over the suit property and the plaintiff created/ obtained sale deed from a title less person who had no possession. The plaintiff, depending on some false and fabricated documents, is trying to grab the suit property and as such the application is liable to be rejected. Further contended that established principle that a receiver should not be appointed in suit for possession. Moreover receiver will not be appointed in the instant case because all the circumstances is in favour of the defendants.

6.               After hearing both the parties the learned Joint District Judge, 3red Court, Dhaka by his impugned judgment and order allowed the application for appointment of receiver.

7.               Being aggrieved  by and dissatisfied with the Order No.33 dated 16.10.2017 passed by the Joint District Judge, 3rd Court, Dhaka in Title Suit No.75 of 2015 allowing the application for appointment of receiver , the defendant as appellants preferred this First Miscellaneous appeal.

8.               Mr. Motahar Hossain with Mr. Reziuddin Sarwar, the learned Advocate appearing on behalf of the defendant-appellants and Mr.M. Ashraf Ali the learned Advocate appearing on behalf of the Plaintiff-Respondent by filing an application for vacating the order of stay contested the appeal and the Civil Rule No. 762 (F.M) of 2017.

9.               Mr. Motahar Hossain with Mr. Reziuddin Sarwar the learned Advocate, appearing on behalf of the defendant Appellant petitioners takes us through the certified copy of the plaint of Title Suit No. 75 of 2015 (Annexure-‘A’ to the application for stay),certified copy  of the application for appointment of receiver (Annexure-‘B’ to the application for stay),  certified copy of the written objection filed by the defendant appellant against the application  under Order 40 Rule(1) of the Code of Civil Procedure(Annexure-‘C’ to the application for stay) and submits that the learned trial Judge ought to have considered that there is no scope or necessity for appoint of a receiver since the defendant appellants have already been restrained by an order of injunction passed by the learned Joint District Judge from transferring the suit properties and, as such, the impugned order is liable to be set aside. He further submits that the order of the learned trial Judge is ex-facie illegal inasmuch as the plaintiff failed to prove  that there is a prima facie case requiring the appointment of receiver and, furthermore, such appointment may be made if it is considered just and convenient and, as such, the same is liable to be set aside. He next submits that   the learned Joint District Judge failed to consider that there is no specific allegations for causing damage or wastage or mismanagement or destruction to the suit property and the learned Court below without assigning any reasons or any findings allowed the application filed the plaintiff-respondent which is not tenable in the eye of law and, as such the same is liable to be set aside. He next added that the learned Joint District Judge   ought to have held that the existence of dispute between the parties is no ground for appointing a receiver and furthermore, it is required to be proved that not merely the plaintiffs interest but also the interest of all the parties in the suit and the suit property is required to be protected and, as such, the impugned order is liable to be set aside. He next added that the impugned order on the face of the record shows that the learned Joint District Judge did not apply his judicial mind to the facts and circumstances of the case and materials on record. He next added that the learned Judge of the trial Court failed to consider that there is no special circumstance in allowing the application for appointing a receiver and, as such, the same is liable to be set aside. He finally submits that the learned Joint District Judge   in his impugned order failed to state the circumstances under which the appointment of receiver was made and, as such, the appointment of receiver is arbitrary and illegal, and the same is liable to be set aside.

10.           Mr.M.Ashraf Ali, the learned Advocate appearing on behalf of the Plaintiff-Respondent-Opposite Party contended that the plaintiff had possessed the suit land after his purchase and the defendants after evicting the plaintiff from the suit land are now collecting the rent from there. Thus for the purpose of proper management of property which is subject matter of a suit and for the benefit of all concerned the trial court rightly appointed the receiver  which calls for no interference  by this Court He further contended that the power to appoint a receiver is discretionary and trial court after considering all relevant documents and considering the case of the contesting parties found in its discretion that appointment of receiver would be proper and rightly passed the impugned order for the purpose of serving the ends of justice and protecting the rights of all the parties interested in the controversy.

11.           As regards the jurisdiction of the civil court to appoint receiver, it is covered under order 40 of the Code of Civil Procedure and the principles governing such appointment are well settled. It is also mentioned in the Specific Relief Act and treated it as one of the specific reliefs. There could not be any doubt or dispute that civil court has the jurisdiction to appoint a Receiver, but that jurisdiction depends on various circumstances. It will be profitable to refer to a decision of Madras High Court reported in A.I.R 1955 Madras 430. On a review of a large number of reported decisions of different High Courts of Sub-continent, it has laid down five principles governing the appointment of Receiver by a Civil Court and they may be enumerated as follows:

(1)    The appointment of a receiver pending in 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 very 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 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. A court will not act on possible danger only; the danger must be great and imminent demanding immediate relief. It has been truly said that a court will never appoint a receiver merely on the ground that it will do no harm.

(4)    An order appointing a receiver will not be made where it has the effect of depriving a defendant of a ‘defacto’ possession since that might cause irreparable wrong. If the dispute is as to title only, the court very reluctantly disturbs possession by receiver but if the property is exposed to danger and loss and the person in possession has obtained it through fraud or force the court will inter pose by receiver for the security of the property. It would be different where the property is shown to be ‘in medio’ that is to say in the enjoyment of no one.

(5)    The Court, on the application made for the appointment of the 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. He must come to court with clean hands and should not have disentitled himself to the equitable relief by latches, delay, acquiescence etc.

In this connection we may refer to another decision of West Pakistan High Court of Karachi Bench in the case of Mahammad Parial Vs. Bashir Ahmed and others. P.L.D. 1957 page 625 where in a suit for declaration of title and for injunction, a receiver was appointed, but the Karachi Bench set aside such appointment and while so doing made a very important observation, saying that it is to be seen whether the court can ultimately hand over possession of immovable property. In another decision in the case of Krishna Deb and others Vs. Surendra Krishna Nandi and others in 34 C.W. N. Page 440 it has been held that a creditor who has got no lion in the property cannot claim the appointment of a receiver. Woodrofee on Receiver may be mentioned to see, what is the purpose and effect of appointment of receiver; he says “The possession of a receiver appointed by the civil court during pendency of a suit should be regard as the possession for the party who might ultimately turn out to be the true owner and entitled to possession as such.” By appointment of a receiver property becomes custodian legis. The receiver is the officer of the court he holds the property as agent of the court. In the ultimate analysis, the receiver holds the property for the party entitled to possession.

12.           Keeping the principles aforesaid in view could there be appointment of a receiver in a suit for declaration of title simpliciter to immovable property? The problem is how the court on the conclusion of the suit could make over possession to the party so entitled, when there is no such prayer, nor the suit framed in accordance with Section 42 of the Specific Relief Act to get complete relief. The court has to answer in the negative.

13.           On consideration of the application under Order 40 Rule (1) of the Code of Civil Procedure it appears to us that no ingredients whatsoever or nothing on record to indicate exigency of circumstances that may justify   the appointment of a receiver.

14.           To consider the legality and propriety of the impugned order under challenged in the First Miscellaneous Appeal, the learned Joint District Judge, 3rd Court, Dhaka without took into account the legal aspect of the matter, facts and circumstances of the suit allowed the application under Order 40 Rule (1) of the Code of Civil Procedure which calls for interference by this court. Having regard to the principals as described above, it appears that there is no reason for appointment of a receiver in the present case, particularly when the court below did not find any mismanagement or damage to the property in question and there is an order of injunction restraining the transfer of property in question.

15.            The submissions made and decisions as referred by the learned Advocate for the appellants and on perusal of the grounds set forth in the appeal, it is our considered view that the appeal has got  merit and the same is, thus, liable to be allowed.

16.           In the result, the First Miscellaneous Appeal is allowed without any order as to cost. Consequently, the judgment and order No. 33 dated 16.10.2017 passed by the Joint District Judge, 3rd Court, Dhaka in Title Suit No. 75 of 2015 allowing the application for appointing receiver is hereby set aside and the application under Order 40 Rule (1) is rejected.

17.           The relevant Civil Rule No. 762 (FM)/ 2017 is disposed of. Accordingly, without any order as to costs.

18.           Send down a copy of the judgment to the concerned Court at once.

Ed.