hvn IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO. 383 OF 2010 IN COURT RECEIVER’S REPORT NO. 90 OF 2010 IN NOTICE OF MOTION NO. 1751 OF 2-009 IN SUIT NO. 1124 OF 2009 Tarun Tolaram Kapoor and Ors. .. Appellants Versus Smt. Nanki Chellaram Chellani & Ors. .. Respondents Mr. Shyam Mehta with Ms. Manju Sharma and Amol Doijode for Appellants. Mr. R.S. Apte, Sr. Counsel with Mr. N.R. Bubna for Respondents. Mr. G.G. Ketkar, 1st Assistant to court Receiver present. CORAM : F.I. REBELLO & R.V. MORE, JJ. DATED : JUNE 17, 2010 P. C.: This is an appeal against the order dated 9.6.2010 whereby the learned Judge has directed desealing of the premises sealed by the Receiver and to hand over the possession to the third party who is Respondent No. 4. It is the contention on behalf of the Appellants that the Court Receiver was appointed on 20.5.2009. On that date the third party i.e. Respondent No. 4 , it is submitted, was not in occupation and possession of the premises and in these circumstances, an application by the third party seeking to deseal the premises ought to be rejected. In the first instance, we may point out that the suit by the appellants herein is for specific performance of contract against Respondent Nos. 1 to 3. It is their contention that they have paid the entire consideration and therefore, are entitled to premises. They were never put in possession of the premises. In other words, the possession would either be with Respondent Nos. 1 to 3 or Respondent No. 4 who now claims that she was in possession pursuant to agreement dated 19.10.2009 entered into with Respondent No. 3 and subsequent sale deed dated 15.5.2009. At this stage, we do not propose to enter into the merits of the respective claims. The Officer from the Court Receiver’s Office went to the premises on 8.6.2009. The Respondent No. 4 at that time was found in the premises. The order of the court was to take formal possession which Respondent No. 4 obstructed as she had no notice of the proceedings. It appears that thereafter an order cam be to be passed without notice to Respondent No. 4 to seal the premises pursuant to which the premises were sealed. On that date apparently Respondent No. 4 was not in the premises. On Respondent No. 4 coming to know of sealing of the premises, she applied for desealing of the premises. The court directed Respondent No. 4 to file an affidavit to indicate that Respondent No. 4 was in possession. The fact that earlier when the representative of the Court Receiver’s office had gone to the premises and that Respondent No. 4 had obstructed taking possession of the premises was not noted. Respondent No. 4 pursuant to the direction of this court filed an affidavit dated 5.5.2010 in which she described various items in the premises. The court receiver was directed to carry out an inspection based on the said affidavit. It was found that 70% of the items were as reflected in the affidavit. The submission on behalf of the Petitioner is that there are cupboards in the premises of which respondent did not have the keys. Two questions arise. Firstly the order of the court was to take formal possession and not to dispossess the person who was in possession. If that was the case and if on the date when receiver visited the premises, if Respondent No. 4 was in possession, Respondent No. 4 could not have been dispossessed and only formal possession could have been taken. Secondly if she had resisted, that would not entitle Respondent No. 4 to be evicted or dispossessed, as the order of the court was to take formal possession. It is sought to be contended that on the date the receiver was appointed, Respondent No. 4 was not in possession. In civil proceedings, the onus of proving that Respondent No. 4 was not in possession was on the Plaintiff. This has not been discharged. On the contrary, Respondent No. 4 was called upon to establish whether she was residing there. Admittedly what she set out was borne out by the fact that 70% of the items were in the premises. As the order appointing Receiver is not challenged before us, we do not propose to go into that matter, suffice it to say that impugned order in our opinion, has considered the merits of the matter. In the light of that, we find no merit in this appeal which is accordingly dismissed. The learned counsel seeks stay of the oder. In our opinion, no case made out. Application for stay rejected. (R.V. MORE,J.) (F.I. REBELLO,J.)