1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.1708 of 2008 In Suit No.2435 of 2005 Indu Patel & anr. .. .. Plaintiffs v/s. Sudha Chowgule & ors. .. .. Defendants And The Court Receiver, High Court, Mumbai .. Respondent And Trinity Securities Pvt. Ltd. .. .. Applicant Ms. N. Rajda with Ms.D. Rajda i/by DSR Associates for Applicant. Mr.F. Dubash i/by M/s.Federal & Rashmikant for Plaintiffs. Mr.Karl Shroff i/by Crawford Baylay & Co. for Deft.No.1 . ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 15 th September, 2008 P.C. : 1. There has been a dispute between the parties to the Suit. A Court Receiver has been appointed. One of the properties for which the Court Receiver is appointed is an immovable property at Chunabhatti. It is an open land. Defendant No.1 on behalf of Defendant No.5 has specifically sought to protect that land. This Suit has been filed in 2005. The Court Receiver has been appointed on 7.9.2006. An 2 inventory the suit property was also to be taken under the order on 7.9.2006. The Court Receiver visited the suit premises to put up his board on 24.4.2008. When the Court Receiver went to take possession of the property and put up his board, he found the board of the Applicant- Company. He also found that some levelling work was going on. He questioned the Applicant's security one Abhay Padhye. He was shown the document of 15.4.2008 in respect of the part of the suit land claimed by the Applicant, xerox copy of Index- II, the 7/12 and 6/12 extracts etc. The Court Receiver also found certain fencing of wire put up at the suit site by the Applicant. 2. The Court Receiver found certain Security Guards appointed by Plaintiff No.2 at the suit site. 3. The suit site is a large open land which initially belonged to N.M. Wadia Trust. A large part of it has been conveyed to Defendant No.5. Two small parts on either side of the suit property have been conveyed to the family of one Bhandary. The Applicant claims a small portion of land to the North East of the suit property bearing Survey No.267 Hissa No.1 (Part) admeasuring 2500 sq. yards. 4. The Applicant claims title to the said land which is reserved 3 for a primary school. The Applicant, therefore, claims that the Court Receiver cannot take possession or otherwise interfere with its land. The document of title in favour of the Applicant is dated 15 th April 2008. 5. The Court Receiver's Report shows that he visited the suit property initially on 21 st April 2008. The Applicant has taken out this Notice of Motion for discharge/removal of the Court Receiver from the small part of the large suit property claimed by the Applicant. The Applicant also requires other directions against the Court Receiver for removal of his board and from interference of the said property. 6. The Applicant's claim has been denied by the parties to the Suit. Nevertheless, the Applicant was found in possession of some part of the land claimed to be the suit property on the initial date when the Court Receiver went to take symbolic possession of the suit property. The Applicant's board was noticed despite the fact that the Security Guards of Plaintiff No.2 were present at the site. The documents relied upon by the Applicant were shown to the Court Receiver. Some fencing on the suit site was stated to have been shown by the security of the Applicant. 7. Possession of the immovable property is required to be 4 shown only by documentary evidence. Hence, the Applicant's document conferring title on the Applicant, if any, was required to be seen by the Court. That was the document between Bhandarys as vendors and the Applicant as the purchaser executed few days before the Court Receiver went to take possession of the suit site. Hence, the Applicant has been directed to trace its title to the earlier owners, who were the vendors of the parties to the Suit also. The Applicant was required to obtain the title deeds to trace title from the initial owners to Bhandarys and then to them. 8. The representative from the office of the Sub- Registrar of Assurances in Pune was directed to remain present with the documents of title executed by and between the initial owners, the N.M. Wadia Charity Trust and Bhandarys. A copy of the registered Indenture dated 31.3.1965 was produced from the Registrar's office pursuant to the summons issued in that behalf. The Applicant has also produced the certified extract of Index- II in respect of that transaction. The Applicant has thereafter also got produced the copy of the certified copy of the said document from the office of the initial owners who were the vendors of the Conveyance of 1965. 9. The Applicant has accordingly shown that the possession 5 shown at the site has been derived under a lawful title. 10. Inter alia, the Applicant has relied upon an order dated 17.11.1964 of the Charity Commissioner granting permission to sell the suit properties to Defendant No.5 in the Suit under Section 36 of the Bombay Public Trusts Act. The Applicant has further shown a plan taken by it from the office of the Charity Commissioner certified as true copy by the Charity Commissioner's office. The plan shows the entire open land of N.M. Wadia Trust. It shows Survey No.267 Hissa No.1 (Part) and Survey No.287 Hissa No.1 which has been conveyed to Defendant No.5 in red since that was the land under consideration of the Charity Commissioner for which the aforesaid order came to be passed on 17.11.1964. The land which the Applicant claims is a small land reserved for a primary school shown as a small quadrangle on the North East part of Survey No.267 Hissa No.1 (Part). That land forms the other part of Survey No.267 Hissa No.1 (Part). Its northern boundary abuts the Nala and the eastern boundary abuts the Sion- Chembur Road. The Applicant has traced its title to the earlier owners. The Applicant's land is identifiable. Its possession, when the Court Receiver went to take possession of the suit site, is accordingly explained. The Court Receiver cannot take possession of the land claimed by the Applicant since 6 he has been appointed in respect of the land claimed only by the parties to the Suit. The act of the Court Receiver putting up his board on the Applicant's land would, therefore, be wrongful taking of possession by an officer of the Court and would exceed his authority. In fact, the land for which the Court Receiver is appointed has not been specifically described showing of the four boundaries thereto and hence, the error. 11. It is argued on behalf of Defendant No.1 that this Application is not maintainable and the Applicant must obtain the relief in the separate Suit. That contention is incorrect. When the Court Receiver is appointed in respect of the land stated to be the suit property, the Court Receiver can act only in respect of such properties. For want of specific and adequate description of the suit property or otherwise, if the Court Receiver by mistakenly or upon wrong instructions of parties seeks to take possession of the property of the neighbouring owners or other title- holders, the Court appointing Receiver must alone pass directions to prevent the Court Receiver from doing so. The Application is not only maintainable, but is the only correct remedy. 12. It is argued that the Municipality was to widen the Nala 7 which forms the northern boundary of the property of the parties to the Suit as well as of the Applicant. It is contended that Defendant No.5 received a notice from the BMC along with the plan in December 2006 for widening the Nala. It is also contended that because they received the notice they are in lawful possession and having title of the property shown in the plan. 13. It is not known whether a similar notice was given to Bhandarys who had title to the property adjoining that of the suit property in 2006. The widening of the Nala is shown on both, the suit property as well as the Applicant's property which abuts the Nala. Both the properties would come under the Nala to the extent the Nala is widened if and when it is widened. It is not shown by Defendant No.1 as to whether the Nala has been widened. Defendant No.1 has also not shown any certificate issued by the BMC of the work having been done, to show when the work was done, if at all. 14. The Applicant's property is fenced. The wire fence has been shown to and noticed by the Court Receiver since April 2008. hence, the widening of the Nala is of no consequence. 15. It is the case of the Applicant that its property was fenced and that the Court Receiver tampered with the fencing to 8 come upon the Applicant's property. The Court Receiver's Report also shows that the Applicant's security Abhay Padhye had identified the fencing of wire at the suit site and stated that that was put up by the Applicant. The Applicant has shown photographs of the fence. 16. In the absence of the fencing of the parties to the Suit and upon seeing the fencing put up by the Applicant, directions to the Court Receiver with regard to the Applicant's property can be in respect of the property admeasuring 2500 sq. yards within the fencing which is on the North- East of the suit site abutting the Nala on the north and Sion- Chembur Road on the East. 17. Hence, the following order:- It is clarified that the Court Receiver is not appointed Receiver and hence, cannot interfere with, put up his board or otherwise take possession, symbolic or otherwise of the property claimed by the Applicant, shown in the plan of the Charity Commissioner as aforesaid. The Receiver shall remove board of the Court Receiver on the Applicant's property within the fencing. Five photographs signed by the Applicant's Advocate, 9 showing the Applicant's property within the fencing as well as the Court Receiver's board are taken on record. The Notice of Motion is disposed of accordingly. [SMT.ROSHAN DALVI, J.]