1 caf2748 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.2748 OF 2009 IN FIRST APPEAL NO.637 OF 1997 1 Kadai Budhiram Yadav (since deceased through L.Rs) ...Applicants vs. Ram Bahor Babu Nandan Yadav (since deceased through L.Rs.) ...Respondents Shri R.S.Yadav for the applicants Shri K.K.Pandey for the respondent no.2 Ms Minakshi Surve i/b Shri R.A.Thorat for Respondent nos. 1A to 1F Shri B.B.Nangare for occupant no.3 Shri Atul Damle i/b Ashish J. Dubey for occupant nos.4, 6 to 11, 13, 14, 15 and 16 . Shri S.A.Yadav for occupant no.12-A Mr.G.G.Ketkar, 1st Asst. To Court Receiver is present CORAM : A.S.OKA,J. DATE : MAY 5, 2011 P.C.: 1 Heard the learned counsel for the parties. This civil application is taken out by the original plaintiffs-respondents in the first appeal. The challenge in the First Appeal is to the decree for possession of the suit property admeasuring 550.40 sq. meters. The decree directs the removal of the structure erected on the suit property. The appeal has been admitted. This Court has appointed the Court Receiver, High Court, Bombay as the Receiver of the suit property. Order of appointment of the Court Receiver was made by an order passed on 3rd December 2007 in civil application no.1535 of 2006. The Court Receiver was directed to take a formal possession of the suit property without disturbing the possession of any person found in possession. 2 caf2748 2 In the present application, it is contended that the second respondent in this application continues to illegally collect the amounts from the occupants of the structures on the suit property and he has collected a sum of Rs.62,000/-. It is prayed that the second respondent should be directed to deposit a sum of Rs. 62,000/- with the Receiver and in the event of non deposit of the compensation amount, the Receiver be directed to restore the position as it existed on the date of filing of the first appeal. Another prayer is for appointment of the second respondent as an agent of the Court Receiver which prayer has not been pressed. 3 On the basis of the order passed by this Court on the present civil application, the Court Receiver has filed Report Nos.10 of 2011 and 75 of 2011. Today, the Court Receiver s Report no.92 of 2011 has been tendered on record. The report disclose that some of the occupants have entered the suit property after the appointment of the Court Receiver. Notice of the reports of the Court Receiver was ordered to be served on all the occupants. On 10th March 2011, this Court made it clear to the occupants that order of eviction will have to be passed against the unauthorised occupants who have entered the suit property after the Court Receiver was appointed. Therefore, time was granted to the learned counsel for the occupants to address the Court on the issue of their eviction. Affidavits of the third parties/occupants are already filed on record. . The submission of the learned counsel for the applicant is that those persons who have entered the property after the same become custodia legis will have to be forcibly evicted. The learned counsel for the 3 caf2748 occupants relied upon the various documents which are annexed to the affidavits as well as documents which were produced before the Court Receiver. The learned counsel Shri Damle appearing for some of the occupants has relied upon the decision of the Apex Court in the case of Anthony C. Leo V. Nandilal Bal Krishnan [(1996) 11 Supreme Court Cases 376]. He submitted that the order of summary eviction cannot be passed without determining the rights of the third parties. 4 I have perused the affidavits filed by the as well as the reports of the Court Receiver. The affidavit filled by occupant no.14 Suman Jitnath Yadav discloses that he has occupied a room admeasuring 10` x 15 since the year 2009. Affidavit of the occupant no.16 Surendranath Harishankar Yadav discloses that he has come in possession of a room admeasuring 10` x 10 since 18 th October 2010. As far as these two occupants are concerned, it is undisputed that they have entered a part of the suit property after the property became custodia legis. Thus, the possession of the said two occupants is unauthorised and illegal. Therefore, the said two occupants will have to be evicted. The decision in the case of Leo (supra) will not come in the way of passing order of eviction against the said two occupiers. 5 Various submissions have been made as regards other occupiers. Prima facie, there are documents produced by the said persons showing that they were in the suit property prior to the date on which the Receiver was appointed by this Court. Therefore, order of summary eviction cannot be passed while deciding this civil application and Court Receiver s reports which are before the Court. 4 caf2748 6 On the basis of the documents supplied to the Court Receiver, if he is of the view that the certain occupants including the occupants who have filed affidavits in the civil application have entered a part of suit property after the property became custodia legis, the Court Receiver will have to submit a report seeking appropriate directions from this Court. 7 As the Court Receiver has been appointed, the occupants who have claimed that they are paying rent to various persons, will have to pay amounts equivalent to the rent to the Court Receiver. No other person is entitled to collect rent or any other amount from the occupants of the suit premises In the event, the Court Receiver finds that some of the occupants are not paying any amount, the Court Receiver shall submit a report to this Court seeking appropriate directions. 8 As far as prayer (a) is concerned, such a drastic order directing the 2nd respondent to deposit money collected by him cannot be passed at this stage. 9 Hence, civil application as well as Court Receiver Report nos.10 of 2011, 75 of 2011 and 92 of 2011 are disposed of by passing the following order : i) The Court Receiver will examine the documents submitted by all the occupants of the suit property except the occupant nos.14 and 16 and if he is of the view that some of the occupants have occupied the suit property after the property became custodia legis, he shall submit a report to this Court seeking appropriate directions. ii)The Receiver shall collect the amounts equivalent to rent from all the occupants of the suit property 5 caf2748 and no other party to the appeal shall be entitled to collect any amount from the occupants. iii)If any of the occupants fail to pay amounts to the Court Receiver, a report shall be submitted seeking appropriate directions from this Court. iv)The Court Receiver shall forcibly evict Mr.Suman Jitnath Yadav and Mr.Surendra Prasad Harishankar Yadav from the respective tenaments occupied by them, if necessary, by taking police help. The Officer incharge of the concerned local police station shall render necessary police help to the Court Receiver on production of an authenticated copy of this order. v) Time of two months is granted to said Suman Jitnath Yadav and Surendra Prasad Harishankar Yadav to remove themselves and hand over vacant possession of the tenements in their possession to the Receiver. If they fail to do so within the stipulated time, the Court Receiver will forthwith take action of dispossession in terms of this order. vi)If the Court Receiver finds that any unauthorised construction has come up on the suit property, the said fact shall be brought to the notice of the Municipal Corporation by the Court Receiver by filing appropriate complaint. vii)After scrutinizing the original documents submitted by the parties, the Court Receiver shall return the original documents to the parties after retaining on his file true photo copies thereof duly signed by the concerned parties. viii)Application is disposed of on above terms. JUDGE