KHATIJABI Vs. ZAHIDABI

JUDGEMENT

(1.) PLAINTIFFS filed O. S. No. 107 of 1978 in the court of the Munsiff, Karwar. The suit was for partition of the suit properties belonging to their deceased brother. Defendants were none other than other sisters, who also had equal share in the suit schedule properties. PLAINTIFFS also filed an application under Order XL R. 1 for appointment of receiver to manage the suit schedule properties, pending disposal of the suit. That application came to be allowed by the Trial Court by appointing defendant No. 1 as receiver. Aggrieved by the same the plaintiffs went up in appeal against the order made on I.A.I, in O. S. No. 107 of 1978, in Misc. Appeal No. 13 of 1980. Cross-objections were also filed by the defendant No. 1 who was already in possession of the suit schedule properties before filing of the suit objecting to her appointment as receiver. The lower appellate Court after considering the facts and the evidence (by affidavits) on record in that behalf, came to the conclusion that it was not proper for the court at that starre to appoint a receiver. Therefore, Suit for partition-Receiver. it set aside the order. Aggrieved by the same the plaintiffs have presented the present Revision Petition, interalia contending that the appeal should have been allowed inasmuch as the plaintiffs wanted the safety of the property pending disposal of the suit for partition and separate possession and therefore, it was proper for the Court to have passed the order on I.A. appoinling a third person as as receiver so that their shares and the income therefrom are protected. The lower Appellate Court rejected that contention on the ground that it was not proper for a stranger to be appointed receiver when admittedly one of the parties to the suit was already in possession and management of the suit schedule properties. The lower appellate Court also upheld the contention of defendant No. 1 in her cross-objection that it was not proper for her to be appointed receiver as she was in possession of the properties in her own right.

(2.) SRI Devadhar, learned counsel for the petitioners has vehemently argued that the lower appellate Court erred in at least not maintaining defendants No. 1's position as receiver as ordered by the trial Court, inasmuch as she would be accountable for the income of the suit schedule properties. . Mere accountability is not enough for the appointment of a receiver. It is well settled principle of law, the co-sharer in possession is accountable to all other sharers. If this is the position then the mere fact of defendant No. 1 being in possession and management of the suit schedule properties will in no way affect the rights of the other co-sharers particularly the plaintiffs. Therefore, the view taken by the lower appellate Court is correct. This is not a case where this court should interfere under Section 115 of the Civil Procedure Code, when no error of Jurisdiction is pointed out. Civil Revision Petition is therefore, rejected.