High Court Division :
(Civil Appellate Jurisdiction)
Nozrul Islam
Chowdhury J
Kashefa Hussain J
Amena Meher…………….
…………………Defendant-Appellant
vs
Judgment
May 19th, 2014.
Md Abdul Kader and others …… Plaintiff- Respondents *
Code of Civil Procedure (V of 1908)
Order XL, rule 1
For the purpose of protection and preservation of the fruits grown in the litchi bagan, in all fairness, the matter be looked into with proper attention and in doing so we feel it proper to allow appointment of a receiver in respect of the litchi bagan situated in the disputed land. . ….. (9)
Rowshan Alam Khan, Advocate-For the Appellant.
Nasir Uddin Khan, Advocate-For the Respondents.
Judgment
Nozrul Islam Chowdhury J : In a pre-emption proceeding under Mohammedan Law, the appellant is the pre-emptee who purchased the disputed land from one Jamiia Khatun by a registered kabala dated 23-8-2011 bearing registration No.4146 and the pre-emptor respondent has brought the proceeding claiming himself to be a co-sharer and a continuous owner of the disputed holding. The appellant claimed that he having purchased the disputed land on 23-8-2011 from Jamila Khatun was given possession thereof and he having been in exclusive possession got the same mutated in his favour. During pendency of the pre-emption proceeding the appellant filed an application under Order XL, rule 1 of the Code of Civil Procedure praying for appointment of a receiver in respect of the litchi bagan situated over the disputed land, claiming that the litchis are almost ripe and it has got a short and limited period of time for plucking the fruits. It was also stated in the application by the appellant that over the claim of the fruits grown in the orchard there is an apprehension of breach of peace which might lead to loss of lives between the parties; therefore, the appellant as petitioner filed an application for appointment of a receiver in respect of the litchi bagan.
2. The learned Joint District Judge, 2nd Court, Pabna having taken up the matter, heard both sides i.e. pre-emptee and pre-emptor opposite party. The pre-emptor opposite party of course did not file written objection although he resisted the prayer made by the pre-emptee, making oral submissions before the Joint District Judge, who upon hearing both sides rejected the prayer for appointment of receiver, by the impugned order dated 25-3-13 passed in pre-emption suit No. 22 of 2012.
3. The said order No.14 dated 25-3-13 passed by the learned Joint District Judge, is in challenge before this court in the present appeal.
4. We have heard Mr Rowshan Alam Khan the learned Advocate appearing for the appellant as also Mr Nasir Uddin Khan on behalf of the respondents.
5. Mr Rowshan Alam Khan the learned Advocate appearing for the appellant having taken us through the materials on record including the impugned order submits that the learned Joint District Judge while refusing the appointment of receiver did not apply his judicial mind to the essential element as to whether the property involved therein can be protected and preserved without appointing of a receiver or not, in other words, the learned Joint District Judge totally ignored the question of protection and preservation of the subject matter involved in the application for receiver and that the impugned order has been passed on extraneous consideration such as pendency of the Partition Suit in between the parties, consequently refused the prayer for appointment of receiver, therefore the impugned order is liable to be set-aside and a direction may be given for appointment of the receiver in respect of the disputed litchi bagan.
6. Mr Nasir Uddin Khan, the learned Advocate appearing for the respondents, on the other hand, submits that in view of the pendency of the Partition Suit No.253 of 2012. between the same parties which covers the disputed land, the learned Joint District Judge has rightly refused the prayer for appointment of receiver by the impugned order which do not call for any’ interference by this court ..
7. We have heard the learned Advocate from both sides perused the materials on record including the impugned order and our attention has been drawn to the application filed by the appellant before the learned Joint District Judge under Order XL, rule 1 of the Code of Civil Procedure wherefrom it transpires that the litchi is a perishable fruit which gets ripe and its plucking period is a very short one in the season and admittedly there is a litchi bagan situated over the disputed land which is the subject matter of the proceedings.
8. It is also admitted by the parties that the disputed land which covered the litchi bagan has been purchased by the pre-emptee appellant by a registered kabala dated 23-8-2011 from Jamila Khatun an admitted co-sharer and it is also pointed out by the learned Advocate for the appellant that upon being inducted into possession of the disputed land the appellant got his name mutated in respect of the disputed holding in the meantime.
9. We have also noticed that the litchi is ‘a perishable commodity and in the event of dispute over the ownership it may be destroyed or rendered useless causing a huge financial loss to the party concerned (therefore, for the purpose of protection and preservation of the fruits grown in the litchi bagan, in all fairness, the matter be looked into with proper attention and in doing so we feel it proper to allow appointment of a receiver in respect of the litchi bagan situated in the disputed land as prayed for by the appellant pre-emptee and the view taken by the learned Joint District Judge while disposing of the application filed by the pre-emptee under Order XL, rule I the learned Judge did of apply his judicial mind to the fact and law involved in the matter. Therefore, we find substance in the appeal, accordingly the same is allowed without any order as· to costs and connected rule being Civil Rule No.296(fm) of 2013 is also disposed of. Consequently, the impugned order dated 25-3-2013 passed by the learned Joint District Judge, 2nd Court, Pabna in Other Class Suit No.22 of 2012 is hereby set-aside. The learned Joint District Judge is directed to appoint receiver with respect to the litchi bagan situated over the disputed land within one week from the date of receipt of this judgment.
The office is directed to communicate this order to the Joint District Judge, 2nd Court, Pabna for compliance.
(Civil Appellate Jurisdiction)
Nozrul Islam
Chowdhury J
Kashefa Hussain J
Amena Meher…………….
…………………Defendant-Appellant
vs
Judgment
May 19th, 2014.
Md Abdul Kader and others …… Plaintiff- Respondents *
Code of Civil Procedure (V of 1908)
Order XL, rule 1
For the purpose of protection and preservation of the fruits grown in the litchi bagan, in all fairness, the matter be looked into with proper attention and in doing so we feel it proper to allow appointment of a receiver in respect of the litchi bagan situated in the disputed land. . ….. (9)
Rowshan Alam Khan, Advocate-For the Appellant.
Nasir Uddin Khan, Advocate-For the Respondents.
Judgment
Nozrul Islam Chowdhury J : In a pre-emption proceeding under Mohammedan Law, the appellant is the pre-emptee who purchased the disputed land from one Jamiia Khatun by a registered kabala dated 23-8-2011 bearing registration No.4146 and the pre-emptor respondent has brought the proceeding claiming himself to be a co-sharer and a continuous owner of the disputed holding. The appellant claimed that he having purchased the disputed land on 23-8-2011 from Jamila Khatun was given possession thereof and he having been in exclusive possession got the same mutated in his favour. During pendency of the pre-emption proceeding the appellant filed an application under Order XL, rule 1 of the Code of Civil Procedure praying for appointment of a receiver in respect of the litchi bagan situated over the disputed land, claiming that the litchis are almost ripe and it has got a short and limited period of time for plucking the fruits. It was also stated in the application by the appellant that over the claim of the fruits grown in the orchard there is an apprehension of breach of peace which might lead to loss of lives between the parties; therefore, the appellant as petitioner filed an application for appointment of a receiver in respect of the litchi bagan.
2. The learned Joint District Judge, 2nd Court, Pabna having taken up the matter, heard both sides i.e. pre-emptee and pre-emptor opposite party. The pre-emptor opposite party of course did not file written objection although he resisted the prayer made by the pre-emptee, making oral submissions before the Joint District Judge, who upon hearing both sides rejected the prayer for appointment of receiver, by the impugned order dated 25-3-13 passed in pre-emption suit No. 22 of 2012.
3. The said order No.14 dated 25-3-13 passed by the learned Joint District Judge, is in challenge before this court in the present appeal.
4. We have heard Mr Rowshan Alam Khan the learned Advocate appearing for the appellant as also Mr Nasir Uddin Khan on behalf of the respondents.
5. Mr Rowshan Alam Khan the learned Advocate appearing for the appellant having taken us through the materials on record including the impugned order submits that the learned Joint District Judge while refusing the appointment of receiver did not apply his judicial mind to the essential element as to whether the property involved therein can be protected and preserved without appointing of a receiver or not, in other words, the learned Joint District Judge totally ignored the question of protection and preservation of the subject matter involved in the application for receiver and that the impugned order has been passed on extraneous consideration such as pendency of the Partition Suit in between the parties, consequently refused the prayer for appointment of receiver, therefore the impugned order is liable to be set-aside and a direction may be given for appointment of the receiver in respect of the disputed litchi bagan.
6. Mr Nasir Uddin Khan, the learned Advocate appearing for the respondents, on the other hand, submits that in view of the pendency of the Partition Suit No.253 of 2012. between the same parties which covers the disputed land, the learned Joint District Judge has rightly refused the prayer for appointment of receiver by the impugned order which do not call for any’ interference by this court ..
7. We have heard the learned Advocate from both sides perused the materials on record including the impugned order and our attention has been drawn to the application filed by the appellant before the learned Joint District Judge under Order XL, rule 1 of the Code of Civil Procedure wherefrom it transpires that the litchi is a perishable fruit which gets ripe and its plucking period is a very short one in the season and admittedly there is a litchi bagan situated over the disputed land which is the subject matter of the proceedings.
8. It is also admitted by the parties that the disputed land which covered the litchi bagan has been purchased by the pre-emptee appellant by a registered kabala dated 23-8-2011 from Jamila Khatun an admitted co-sharer and it is also pointed out by the learned Advocate for the appellant that upon being inducted into possession of the disputed land the appellant got his name mutated in respect of the disputed holding in the meantime.
9. We have also noticed that the litchi is ‘a perishable commodity and in the event of dispute over the ownership it may be destroyed or rendered useless causing a huge financial loss to the party concerned (therefore, for the purpose of protection and preservation of the fruits grown in the litchi bagan, in all fairness, the matter be looked into with proper attention and in doing so we feel it proper to allow appointment of a receiver in respect of the litchi bagan situated in the disputed land as prayed for by the appellant pre-emptee and the view taken by the learned Joint District Judge while disposing of the application filed by the pre-emptee under Order XL, rule I the learned Judge did of apply his judicial mind to the fact and law involved in the matter. Therefore, we find substance in the appeal, accordingly the same is allowed without any order as· to costs and connected rule being Civil Rule No.296(fm) of 2013 is also disposed of. Consequently, the impugned order dated 25-3-2013 passed by the learned Joint District Judge, 2nd Court, Pabna in Other Class Suit No.22 of 2012 is hereby set-aside. The learned Joint District Judge is directed to appoint receiver with respect to the litchi bagan situated over the disputed land within one week from the date of receipt of this judgment.
The office is directed to communicate this order to the Joint District Judge, 2nd Court, Pabna for compliance.
