Judgment:
Sat Pal, J.
(1) This application has been filed on behalf of the plaintiffs under Order 40 Rule I and section 151 of the Code of Civil Procedure (hereinafter referred to as 'the Code') and in this application it has been prayed that a receiver be appointed with directions to take possession of the drawing-cum-dining room of house No.C-4/4A, Model Town, Delhi.
(2) Briefly stated, the facts of the case are that the plaintiffs who are the sons of Shri Inder Sain Jain, defendant No.2, have filed the present suit for partition. Along with the plaint the plaintiffs had also filed an application bearing is No.3178-A/90 under Order 26 Rule9andsection 151 oftheCode. This application came up for hearing on 25th April, 1990and on that date a learned Single Judge of this Court appointed Shri Subash Chander Gupta, advocate also local Commissioner to inspect the premises bearing No.C-4/4A, Model Town, Delhi and to report about the actual possession of the parties to the suit in different portions of the said house. The local commissioner visited the premises on 30th April, 1990 but prior to his inspection, defendant No.2 had already died on 24th April, 1990 i.e. a day after filing of the suit. The local commissioner filed his report on 2nd May, 1990 and in this report it has been mentioned that plaintiff No. 1 and defendant No.3 and their family members were found present in the suit property but defendant No.3 refused to give signatures in token of the receipt of the Court order though the contents were read over to him. It has also been mentioned in the proceedings attached to the report that defendant No.3 refused to put his signatures on the proceedings. It will be relevant to reproduce para 5 of the report of the local commissioner which pertains to the drawing-cum-dining room which is the subject matter of this application. '5. Portion shown as mark 'E' in the Plan prepared, this is a big drawing combining room, having two gates at two ends of the room as shown in the Plan prepared. At the time of my inspection both the gates of the big room were found locked with two locks on each door and the plaintiffs stated that one lock was put by them and the defendant No.3 stated that the other lock was put by him on each door. 'The parties further stated that these locks had been put by them after the death of their father Shri Inder Sain Jain, defendant No.2.'
(3) From the above para 5 of the report, it is evident that the plaintiffs and defendant No.3 the had put their respective locks on the drawing-cum-dining room after the death of their father Shri Inder Sain Jain.
(4) Mr. Shyam Kishore, learned counsel appearing on behalf of the plaintiffs submitted that defendant No.2 before his death was in possession of the drawing-cum-dining room and when he died, then the drawing-cum-dining room was locked by the parties. He drew my attention to the report of the local commissioner, the relevant portion of which has been reproduced hereinabove and submitted that the local commissioner had found the drawing-cum-dining room locked at the time of inspection. He further submitted that in reply to IANo.6541/90 defendant No.3 had admitted that the drawing-cum-dining room was being used jointly by defendant No.2 with him during his life time. He, however, submitted that it has been falsely stated by defendant No.3 in the said reply that drawing-cum-dining room was never locked by any of the plaintiffs. He submitted that after the local commissioner had visited the premises, the locks were broken by defendant No.3 and thereafter defendant No.3 had taken possession of the drawing-cum-dining room illegally. He, thereforee, contended that keeping in view the conduct of defendant No.3, the receiver should be appointed to take possession of the said drawing-cum-dining room.
(5) Mr. Pahuja, learned counsel appearing on behalf of defendant No.3, however, submitted that defendant No.3 is the owner of half of the house including the drawing-cum-dining room in question and he had been in possession of the same much prior to the death of his father. He further submitted that plaintiff No. I after retirement has settled in his own flat which is situated at R.K. Puram, New Delhi and he has never resided in the suit property and plaintiff No.2 is settled with his family at Bombay and he too has never resided in the suit property. He also drew my attention to para 5 of the plaint wherein it has been stated that, 'defendant No.2 used a portion of the drawing-cum-dining room. The rest of the drawing-cum-dining room is used by the parties.' He submitted that in the present application the plaintiffs had tried to make out a false case which is contrary to the aforesaid pleadings as in this application it has been stated that defendant No.2 was in possession of drawing-cum-dining room. He also submitted that the facts stated in the report of the local commissioner are not correct as defendant No.3 was not present at the time when the local commissioner visited the suit premises. The learned counsel contended that a receiver should not be a pointed unless there is some emergency or danger or loss that may be caused to the right involved in the suit and an order should not be made if it has the effect of depriving a defendant of de facto possession. He submitted that since defendant No.3 was in possession of the drawing-cum-dining room, no receiver should be appointed. He also contended that in a suit for partition of the joint family property a third party should not be appointed as a receiver. In support of his contention the learned counsel placed reliance on a judgment of Mysore High Court in Srinivasa Rao vs. Baburao and another, Air 1970 Mys 141 and two judgments of Orissa High Court in Narayan Chandra Sahu vs . Abhimanyu Sahu, : AIR1980Ori118 and Rasi Dei Vs . Bikal Maharana and others, : AIR1965Ori20 .
(6) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties. From the report of the local commissioner the relevant portion of which has been reproduced hereinabove, it is evident that the parties had locked the drawing-cum-dining room immediately after the death of their father (defendant No.2). From para 5 of the plaint and reply of defendant No.3 tolANo.6541/90itisalsofoundthat a portion of the drawing-cum-dining room was being used by defendant No.2 when he was alive. The contention the learned counsel for defendant No.3 that since the said defendant was in possession of the drawing-cum-dining room even prior to the death of defendant No.2, no receiver should be appointed, cannot be accepted as defendant No.3 appears to have taken possession of the drawing-cum-dining room after breaking open the locks which were found by the local commissioner on both the gates of the said drawing-cum-dining room. It may be pointed out here that the objections to the report of the local commissioner have been filed on behalf of defendant No.3 on 9th September, 1993 whereas the said report has been referred to by the plaintiffs in IANo.6541/90 filed on 16th August, 1990, copy of which was duly supplied to the learned counsel for the defendant No.3.
(7) Another relevant fact to be taken into consideration is that though both the plaintiffs are in possession of a portion of the suit property but they are not residing in the suit property permanently, whereas defendant No.3 Along with his family members is actually residing in the suit property. Having regard to the facts and circumstances of the case I am of the view that though it is not a fit case for appointment of there receiver but at the same time the plaintiffs along with defendant No.3 should have a right to use the drawing cum-dining room in question jointly. Accordingly, I direct defendant No.3 to permit both the plaintiffs and members of their families to use drawing-cum-dining room jointly Along with defendant No-3 and members of his family.
(8) With this order the application stands disposed of. The parties are, however, left to bear their own costs.