pvr １ app318-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.318 OF 2011 IN NOTICE OF MOTION NO.428 OF 2011 IN SUIT NO.326 OF 2011 Sonal K.Patel. ...Appellant vs. Himanshu D.Desai. ...Respondent --- Mr.Aspi Chinoy, Sr.Advocate with Ms.Sheetal Shah i/b. M/s.Mehta & Girdharilal, for Appellant. Mr.Rajiv Narula i/b. M/s.B.H.Bohra & Co., for Respondent. --- CORAM: D.K.DESHMUKH & ANOOP V. MOHTA, JJ. DATED: 30th August,2011. P.C.:- 1. Admit. Heard finally by consent of parties. By this appeal, the appellant challenges order dated 10.3.2011 passed by the learned Single Judge of this Court in Notice of Motion no.428 of 2011. The appellant is the plaintiff. He has filed suit for decree of declaration that the plaintiff is the owner of undivided 95% pvr ２ app318-11 share, right, title and interest in the flat described at Exhibit A to the plaint. The plaintiff is also claiming a decree of partition and separate possession. In that civil suit, a notice of motion was taken out by the plaintiff for appointment of Receiver on the flat and for direction to the defendant to pay compensation because the defendant alone is occupying the flat. The learned Single Judge has accepted that the plaintiff has prima facie case, but has granted interim injunction in terms of prayer clause (c) i.e. restraining the defendant from alienating or disposing of the flat. In the present appeal, the original plaintiff claims that the learned Single Judge should have made an order for appointment of receiver and payment of compensation by the defendant. 2. We have heard the learned Counsel appearing for both the sides. It is common ground that as on today as the document stands, the pvr ３ app318-11 plaintiff has 95% ownership in the flat and the defendant has 5% ownership in the flat. Though the defendant claims that there was an agreement between the parties to enhance the share of the defendant from 5% to 50%, neither any document is produced in support of that claim nor is there any civil suit filed by the defendant for decree of enhancement of his share of ownership in the flat. Therefore, as on today for the purposes of disposing of this appeal we will have to go by the position that the plaintiff is 95% owner of the flat, whereas the defendant is 5% owner of the flat. 3. Admittedly, the defendant is occupying the entire flat and the plaintiff is not occupying any part of the flat. The learned Counsel appearing for defendant submitted that as a part owner of the flat, he is entitled to occupy the flat and his occupation of the flat cannot be termed as illegal and contrary to law, pvr ４ app318-11 and therefore, relying on the judgment of the Supreme Court in the case Divisional Controller, KSRTC Vs. Mahadeva Shetty, 2003(7) SCC 197 he submits that the defendant cannot be made to pay the compensation for his occupation. The learned Counsel also submits that the defendant has not prevented the plaintiff from occupying the flat. During the course of the arguments, therefore, the learned Counsel appearing for plaintiff suggested that it is three bed rooms flat, and therefore, the defendant should permit the plaintiff or her nominee to occupy at least two bed rooms. The learned Counsel appearing for defendant did not agree to the suggestion that the plaintiff can nominate any person to occupy two bed rooms of the flat on her behalf. According to him, it is only the plaintiff who can occupy the flat. In our opinion, as it is an established position on record that the plaintiff is 95% owner of the flat and if she has right to occupy the flat, her right to nominate somebody pvr ５ app318-11 else to occupy the flat on her behalf cannot be denied. Thus, effectively the defendant is occupying the flat exclusively and denying the plaintiff, her right to occupy the flat. In our opinion, in this situation considering that the plaintiff is admittedly 95% owner of the flat, the plaintiff is entitled to get compensation from the defendant. Though the occupation of the defendant cannot be termed as illegal because he is co-owner of the flat, but considering that he is owner of only 5% share of the flat, his occupation of the entire flat to the exclusion of the plaintiff without paying the plaintiff anything, in our opinion, is unjust. As we find that the plaintiff is suffering injustice because of the occupation of the entire flat by the defendant, in our opinion, the defendant should be made liable to pay compensation to the plaintiff, if he wants to continue to occupy the flat exclusively. Though, because the occupation of the defendant cannot be termed as illegal, we pvr ６ app318-11 would not be justified in appointing the Receiver on the flat, in our opinion, the following order would meet the ends of justice. The interim order in terms of prayer clause (c) of the Notice of Motion no.428 of 2011 shall continue to operate. The Receiver of this Court shall appoint a Valuer from the panel maintain by the Receiver at the cost of the plaintiff to submit a report to the Receiver as to what will be the reasonable monthly compensation of the flat. On the basis of the report, the Receiver shall determine the amount of monthly compensation payable in relation to the flat. The defendant shall deposit in the Court, with due intimation to the plaintiff, 95% of the amount that may be determined as the amount of monthly compensation by the Receiver. The monthly compensation shall be payable from today. The defendant shall be at liberty to apply for any modification of this order, in case he files suit for enhancement of his share in the pvr ７ app318-11 flat or files cross objections in the suit. In case, such application for modification is made, it shall be considered on the basis of the material that the defendant may produce. After informing the defendant of the amount of monthly compensation by the Receiver, in case the defendant does not make payment of the amount of the compensation within a period of two weeks from the date on which the intimation is given, the Receiver shall stand appointed on the flat. In that event, the parties shall be at liberty to move the Court for appropriate further orders. Appeal is disposed of. As the appeal is disposed of, notice of motion no.1722 of 2011 pending in the appeal does not survive for consideration, it is disposed of. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.)