- (1.) D. K. Seth, J. This is application for vacating the stay order granted by this court. The hearing of the said application would in fact decide the controversy involved in the writ petition between the parties. The learned counsel for the parties have, therefore, agreed to address the Court on merit for a final decision.
(2.) THE order dated 28-7-1995 passed by the learned IIIrd. Additional District Judge, Kanpur Dehat in Civil Misc. Appeal No. 35 of 1994 which learned counsel for the respondent contends to be a Misc. Appeal has been challenged. THE order appointing receiver by the learned trial Court by an order dated 11th May, 1994 passed by this learned 1st. Additional Civil Judge, Kanpur Dehat in Suit No. 114 of 1993 was the subject-matter in the appeal. Learned trial Court, though it found that there was no sufficient case made out for grant of injunction but on the ground that both the parties are claiming possession, therefore, receiver was appointed. THE learned lower appellate court reversed the said order on the ground that the plaintiff had no possession. On the other hand he found further that the defendant was in possession and by reason of sub-rule (2) of rule 1 of Order XL CPC the defendant could not be removed from possession of the property since the plaintiff did not have any legal right to remove the defendant from such possession. Learned counsel for the petitioner contends that the lower appellate Court did not apply its mind to the finding of fact, by the learned trial court that the plaintiff was in possession of he property, therefore, the said order cannot be sustained. He vehemently argued that sufficient cause for appointment of receiver was made out. According to him by reason and by virtue of the agreement to sell he has acquired an interest in the property and has a right to remove the defendant. Learned counsel for the respondent on the other hand contends that the learned appellate court having come to a clear finding that the defendant was in possession and the plaintiff was not in possession. The said finding being a concurrent finding for the purposes of interlocutory order this court should not interfere with the same. According to him there is no infirmity in the order impugned so as to bring the same within the scope of ratio decidendi in the case of Ganga Saran v. District Judge Hapur (AIR 1991 All. 114 ).
(3.) AFTER having heard learned counsel for the parties it appears that the learned trial Court in its order which is Annexure-5, as translated at the bar, had held that it could not be denied that at the first sight it appears that the plaintiff did not have real possession. At the same time the learned trial Court has further found that both the parties are claiming possession in respect of the properties. The question of possession can be decided only at the final decision. In that view of the matter though refused to grant injunction the learned trial court had proceeded to appoint receiver. Nothing has been drawn to my notice by the learned counsel for the petitioner to point out that the learned trial Court has held that the petitioner has acquired any right, title or interest in the property by reason of the said agreement on account whereof he had acquired the right to remove the defendant from possession of the property. On the other hand learned counsel for the respondent, while translating at the bar, pointed out from the order of the learned lower appellate court that the lower appellate court had found, that from the Khasra, Khataunis, which are records of rights and records of titles, that the defendant is the owner and in possession of the property, on the basis of the irrigation receipts it had also found that the defendants have been paying the irrigation charges. Therefore, the plaintiffs claim for possession was found to be untrue. Thus, from the papers it found that the defendant is the owner in possession and had been cultivating the properties and that the title of the defendant is not disputed. Learned lower appellate court has also recorded that in view of sub-rule (2) of Rule 1 of Order 40 CPC No right could be established by the plaintiff to remove the defendant from possession of the property. Thus, it appears that neither the learned trial Court had found even prima facie that the plaintiff is in possession. On the other hand the learned lower appellate court has found the defendant to be in possession. In the facts and circumstances of the case the attention of the court has not been drawn to anything so as to prima facie show that the plaintiff had acquired any title on the basis of the alleged agreement for sale.;