abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2721 OF 2007 IN SUIT NO. 1886 OF 1987 Umesh Bhanjibhai Yadav .. Plaintiff V/s Mithalal Makanji Solanki .. Defendant And Dr. Jyoti Avinash Solanki & Ors. .. Respondents Mr.S. Shetye with Ms.Kapadia i/b Pandya Gandhi & Co. for the plaintiff, in support. Mr.Shailesh Shah with Mr.H. Jain i/b Thakordas & Madgaonkar for the defendants. CORAM : D.G. KARNIK, J. DATE : 21ST APRIL 2008 P.C. P.C. P.C. : 1. By this motion, the plaintiff prays for appointment of the Receiver in respect of flat no.11 on the 2nd floor of the suit property. The plaintiff also prays for an injunction restraining the defendants from transferring, disposing of, alienating or parting with possession or creating third party rights in respect of the said flat. - 2 - 2. According to the plaintiff, by an oral agreement of sale dated 5th July 1984, Mr.Mithalal M. Solanki, the original defendant, agreed to sell to the plaintiff the property consisting of land and building standing thereon consisting of several flats, more particularly described in Exhibit-A to the plaint (hereinafter referred to as the "suit property"). The price agreed was Rs.1,85,000/- out of which the plaintiff had paid Rs.18,500/- (10% of the total price) as an earnest money and the original defendant had executed a receipt for the same. A copy of the receipt is Exhibit-B to the plaint and the terms and conditions of sale are stated therein. 3. As the original defendant refused to abide by the oral agreement of sale, the plaintiff filed the suit for specific performance of the oral agreement for sale. The original defendant denied that there was any oral agreement of sale as alleged and contended that the plaintiff had agreed to give him a loan of Rs.1,85,000/- on the security of the suit property and had paid the first instalment of loan of Rs.18,500/-. The balance loan was never paid and the original defendant had never agreed to sell the suit property to the plaintiff. 4. In the suit, the plaintiff took out Notice of - 3 - Motion No.1799 of 1987 for injunction restraining the original defendant from selling the property. By an order dated 26th August 1988 this Court restrained the original defendant from selling or in any manner disposing of the suit property. Thereafter the original defendant died and his heirs are brought on record. 5. According to the plaintiff, flat no.11 in the suit property is in possession of Mr.Atul Kumar as a licensee. The plaintiff learns that the said licensee is likely to vacate the flat. The plaintiff apprehends that the defendants, who are the heirs of the original defendant, are likely to induct another licensee in the said flat no.11 and therefore has sought the appointment of Receiver in respect of flat no.11 and/or injunction restraining the defendants from inducting any licensee. 6. On my query as to what is the present right of the plaintiff to dispossess the defendants in order to get the relief of appointment of Receiver, learned counsel for the plaintiff stated that at this stage the plaintiff does not press for the appointment of Receiver. 7. Perusal of the plaint shows that the plaintiff has in para 3 of the plaint set out the terms and conditions of the oral agreement of sale in a very - 4 - cursory manner. The plaintiff has not even stated that on sale, the original defendant had agreed to hand over possession of the suit property. It is true that possession follows title and the vendor is required to hand over possession of the property to the purchaser at the time of execution of the sale. The question however is whether the possession, actual or constructive, is agreed to be handed over. It is not the case of the plaintiff that the suit property was vacant at the time of the agreement of sale. At the time of the agreement of sale, the suit property was occupied by tenants or licensees who continue to occupy it. The original defendant was therefore not required to hand over the vacant possession of the suit property but was required to hand over the symbolic possession by attornment of tenancies and/or assignment of right to receive license fees. 8. Sub-section (4) of section 55 of the Transfer of Properties Act provides that in the absence of a contract to the contrary, the seller is entitled to receive rents and profits of the property till the ownership thereof passes on to the buyer. The defendants as owners of the property are therefore entitled to receive rents and profits (including license fees) of the property. Assuming that the flat no.11 is likely to be vacated, the defendants as owners of the - 5 - suit property are not required to keep it vacant but, subject to previous order of injunction, are entitled to the income of the said flat till the ownership passes on to the plaintiff. It is not disputed that leave and license does not create any interest in the property. If after vacating of the flat no.11 by the licensees, the defendants grant a leave and license in favour of any third party, it would not amount to creation of any interest in the property in favour of the third person. In view of the clear provisions of section 55(4) of the Transfer of Properties Act, which entitle the seller of the property to the income thereof, no injunction can be granted preventing the defendants from giving flat no.11 on leave and license and deriving any income till the ownership passes to the plaintiff. Of course, in view of the previous injunction the defendants cannot grant lease or create any interest in the property in favour of any third person. 9. In the circumstances, there is no merit in the motion which is hereby dismissed. (D.G. KARNIK, J.)