1 srk app-L-16-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODGING) NO.16 OF 2011 IN NOTICE OF MOTION NO. OF 2010 IN SUIT (LODGING) NO.2963 OF 2010 Daryus Soley Panthakey ... Appellant Versus Smt. Zingubai Haribhau Galande and another. ... Respondents ALONGWITH APPEAL (LODGING) NO.12 OF 2011 IN NOTICE OF MOTION NO. OF 2010 IN SUIT (LODGING) NO.2963 OF 2010 Smt. Zingubai Haribhau Galande and another. ... Appellants Versus Daryus Soley Panthakey ... Respondent Mr. D.D. Madon, Senior Advocate with Mr. Sanjay Jain, Mr. Vishal Thaker i/by Ms. Anjali Trivedi for the appellant in Appeal (L) No.16 of 2011 and for respondents in Appeal (L) No.12 of 2011. Mr. A.R. Shaikh with Mr. Sandeep Waghmare for appellants in Appeal (L) No. 12 of 2011 and for respondent in Appeal (L) No.16 of 2011. CORAM : MOHIT S. SHAH, C.J. & S.J. VAZIFDAR, J. Wednesday, January 19, 2011 P .C. Both these appeals are directed against the ad-interim order dated 10th December, 2010 of the learned trial Judge in the notice of motion taken 2 srk app-L-16-11.sxw out by the plaintiff in the suit filed under section 6 of the Specific Relief Act, 1963. 2. The suit property was described in para 1 of the plaint which reads as under:- "1. The plaintiff is the owner of a plot of land, lying and being at CTS No.1719/9, Plot No.3, situate at Madh Island, Village Erangal, Malad, Mumbai, together with the buildings standing thereon, including a bungalow known as `Samrosh', hereinafter referred to as "the said property". The said Property also consists of a Servant quarter/room admeasuring 8ft x 8ft approximately situated near the gate, hereinafter referred to as `the suit premises'. .... The prayers in the plaint are as under:- a) That this Hon'ble Court be pleased to direct the Defendants to quit, vacate, handover and restore the actual physical, unencumbered possession of the suit premises being a servant quarter, admeasuring 8ft x 8ft approximately and situated at CTS No.1719/9, Plot No.3, Madh Island, Village Arengal, Malad Mumbai. Thus, the suit was only in respect of and limited to the servants quarters/ room admeasuirng 8ft x 8ft and not the entire property. 3 In the notice of motion, the plaintiff prayed for the following reliefs: a) Pending the hearing and final disposal of the present Suit, this Hon'ble Court be pleased to pass mandatory orders directing the Defendants to quit, vacate and handover peaceful possession of the suit premises being a servant quarter, admeasuring 8ft x 8ft approximately and situated at CTS No.1719/9, Plot No.3, Madh Island, Village 3 srk app-L-16-11.sxw Arengal, Malad, Mumbai; b) Pending the hearing and final disposal of the present Suit, this Hon'ble Court be pleased to appoint the Court Receiver, or any other fit and proper person as the Receiver and place the Plaintiff in actual and complete physical possession of the suit premises being a servant quarter, admeasuring 8ft x 8ft approximately and situated at CTS No.1719/9, Plot No.3, Madh Island, Village Arengal, Malad, Mumbai; c) That pending the hearing and final disposal of the present Suit, this Hon'ble Court be pleased to restrain the Defendants their servants, agents, person or persons claiming through or under them from in any manner parting with, disposing off, creating any third party right in respect of the suit premises being a servant quarter, admeasuring 8ft x 8ft approximately and situated at CTS No.1719/9, Plot No.3, Madh Island, Village Arengal, Malad, Mumbai. Thus, the reliefs in the Notice of Motion were also restricted to the said servants room. 4. The defendants filed a reply to the Notice of Motion. After hearing the learned counsel for the parties, the learned trial Judge held that though the defendants' claimed that the bungalow was in their occupation and possession, nothing was produced to show that the entire property, namely, the bungalow and the servant room are in physical possession of the defendants on the date of the order. It appears from the tenor of the order of the learned trial Judge that the defendants were, prima facie, in possession of the servant room and not the entire bungalow. The learned trial Judge also found that there was a controversy about the area of the servants room. According to the plaintiff, was 8ft x 8ft but according to the defendants, it is 15ft x 15ft. 4 srk app-L-16-11.sxw 5. After giving the above finding, the learned trial Judge passed the impugned ad-interim order appointing the Court Receiver as the Receiver of the entire property. It was directed that the Receiver shall take possession of the entire bungalow and the servant room and the Receiver shall appoint the defendants as his agent only so far as the servant room is concerned. The learned trial Judge has also directed that until the Court Receiver takes possession, the defendants, their servants and all persons claiming through them shall not create any third party rights in respect of the suit premises. The learned trial Judge them made the following observations: ".........The Court receiver having been appointed of the property he will have to take physical possession thereof and put his lock and key and confine the defendants to the servant room. The request as made for toilet facility and it being allegedly lacking in the servant room, can be made to the Court Receiver who shall submit a report to the Court and seek necessary directions permitting temporary arrangements in that behalf." 6. Pursuant to the above direction, the Court Receiver took possession of the bungalow and the servant quarter and also submitted a report dated 30th December, 2010 indicating, interalia, that the representative of the plaintiff had opened the bungalow with the help of keys available with him and that the Court Receiver took physical possession of the entire bungalow including the servant room, pump room and common toilet. The Receiver further took possession of the servant room admeasuring 180 sq. ft., as indicated by defendant No.2. After taking over the formal possession of the servant room, the Court Receiver handed over possession of the servant room to the defendants as an agent of the Court Receiver. The Court Receiver also made a formal note in his report that, "the aforesaid agents/defendants submits that they will apply before this office for using toilet, pumproom & electricity 5 srk app-L-16-11.sxw connection." 7. The plaintiff has come in appeal against that part of the order by which the learned trial Judge appointed the Court Receiver to take over the possession of the bungalow. It is contended by the learned counsel for the plaintiff that when the suit was confined to the servant room and no prayer in the suit or the notice of motion was made regarding the bungalow and the defendants had not filed any cross suit, the learned trial Judge ought not to have appointed the Court receiver to take over possession of the bungalow as it was not a part of the suit property. 8. On the other hand, the learned counsel for the defendants submitted that the defendants were obviously in possession of the bungalow and the servant room. The learned counsel for the defendants did not dispute the fact that so far they have not filed a suit or any other proceedings in respect of the bungalow but stated that the defendants do propose to file a suit for asserting their rights over the bungalow. It is further submitted that the defendants have been in occupation of the bungalow and the servant quarters since 1971 and they have been using the toilet in the bungalow as well as pump room and electricity connection. 9. The learned counsel for the plaintiff submits that the entire property was always in his possession and even according to the defendants' case, they are in occupation of the bungalow since 2003. 10. In the absence of any suit filed by the defendants, when the plaintiff's suit was confined to the controversy of the servant room, the learned trial Judge ought not to have appointed the Court Receiver in respect of the 6 srk app-L-16-11.sxw bungalow over and above the suit property described as servant room. Hence, we set aside that part of the order by which the learned trial Judge has appointed the Court Receiver to take over possession of the entire bungalow. The impugned order shall be restricted to the servant room only. 11. Even so, having regard to the fact that the Court Receiver has noted that there is a pump room and common toilet and that the defendants had indicated that they proposed to apply for using the pump room and electricity connection, while setting aside that part of the ad-interim order of the learned trial Judge appointing the Court Receiver to take over possession of the bungalow, we direct the Court Receiver to maintain status-quo for a period of four weeks from today to enable the defendants to make necessary prayer for allowing the defendants to use toilet, pump room and the electricity connection and to file any proceedings for that purpose. It is clarified that we have not gone into the merits of the controversy raised between the parties. 12. The Court Receiver will hand over the possession of the bungalow to the plaintiff except the common toilet, pump room and electricity connection subject however to any orders that may be passed in proceedings that may be adopted by the defendants. Notice of motion stands disposed of accordingly. CHIEF JUSTICE S.J. VAZIFDAR, J.