abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4553 OF 2008 IN FIRST APPEAL NO. 1716 OF 2008 Anil S. Jadhav & Anr. .. Applicants V/s Sambhaji R. Pawar & Ors. .. Respondents Mr.Y.S. Jahagirdar, Senior Advocate i/b Mr.Ajit Kenjale for the applicants. Mr.U.P. Warunjikar i/b Mr.A.P. Kulkarni for respondent no.1. Mr.Pradeep Gole for respondent no.2. CORAM : D.G. KARNIK, J. DATE : 16TH DECEMBER 2008 P.C. P.C. P.C. : 1. Heard both sides. 2. By this civil application, the appellants who are original defendants nos.2 and 3 pray for stay of the impugned order dated 9th July 2008 and also pray for an - 2 - injunction restraining the respondent no.1 from disturbing their peaceful possession of the suit property. In the alternative, the appellants have prayed for continuation of the receiver appointed by this Court vide order dated 28th December 2007, till the disposal of the appeal. 3. The first two prayers are not seriously pressed, but learned counsel for the appellants strongly presses the prayer for appointment/ continuation of the receiver. Learned counsel for the respondent no.1 strongly opposes the prayers made by the appellants and submits that the appointment of the receiver has come to an end on decision of the suit. In the alternative, he submits that if the Court is inclined to continue the appointment of the receiver, then the respondent no.1 may be appointed as an agent of the receiver. 4. The suit property is an agricultural land admeasuring about 1 hectare and 1 are. It originally belonged to the respondent no.2. By a sale deed dated 31st October 2001, the respondent no.2 sold and transferred the suit property to the appellants who claim to have become the owners thereof. The appellants claim that they are in possession of the property since its purchase in October 2001. - 3 - 5. Previously, father of respondent no.1 was a tenant in the suit land. The tiller’s day was postponed as the respondent no.2 was then a minor. According to the respondents, father of respondent no.1 surrendered the tenancy of the suit land and an order under section 15 of the Bombay Tenancy and Agricultural Lands Act recording the surrender was also passed. Mutation entry to that effect was also made in the record of rights. After the death of his father, the respondent no.1 filed a suit for declaration that the mutation entry recording the name of respondent no.2 was bad in law and void. He also prayed for an interim injunction claiming to be in possession of the suit property. The suit as well as the interim application were seriously contested in the trial court. The interim application for an injunction was dismissed by the trial court. The appeal against the order of dismissal filed in this Court was also dismissed for non-prosecution. Thereafter, the appeal was restored, but no interim relief of injunction was granted in favour of the respondent no.1. By an order dated 5th July 2007, this Court appointed a Court Commissioner to inspect the suit land and make a report as to who was in possession of the suit premises. By his report dated 30th August 2007, the Court Commissioner reported that it was not possible to state - 4 - positively who was in actual possession of the suit land though the documents showed that the appellants were in possession. Thereafter, by an order dated 20th December 2007 passed by consent of the parties, this Court appointed Nazir of the trial court as the receiver of the suit property including sugarcane crops standing thereon. The receiver was further directed to cut the sugarcane crop, supply it to the sugar factory and deposit the amount in the Court. This was done. Thereafter, the suit was heard on merits and the trial court decreed the suit of the respondent no.1 and has granted injunction restraining the appellants from disturbing the possession of the respondent no.1. That decision is impugned in this first appeal. The appeal has been admitted by an order dated 30th August 2008 (Coram: J.H. Bhatia, J.). The civil application taken out by the appellants is placed for hearing today. 6. Mr.Jahagirdar, learned Senior Advocate appearing for the appellants, relying upon a decision of the Supreme Court in Hiralal Patni v. Loonkaran Sethiya, Hiralal Patni v. Loonkaran Sethiya, Hiralal Patni v. Loonkaran Sethiya, reported in AIR 1962 SC 21 reported in AIR 1962 SC 21 reported in AIR 1962 SC 21 submits that the receiver which was appointed by this Court, continues to be the receiver of the property as his appointment was for unlimited duration. He invites my attention to the observations made in paragraph 11 of the decision of - 5 - Supreme Court which reads thus: "11. The law may briefly be stated thus: (1) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment in the action. (2) If a receiver is appointed in a suit, without his tenure being expressly defined, he will continue to be receiver till he is discharged. (3) But, after the final disposal of the suit as between the parties to the litigation, the receiver’s functions are terminated, he would still be answerable to the court as its officer till he is finally discharged. (4) The court has ample power to continue the receiver even after the final decree if the exigencies of the case so require." He further submits that these observations were re-affirmed by the Supreme Court in Subhadra Rani Pal Subhadra Rani Pal Subhadra Rani Pal Choudhary v. Sherly Weigal Nain, reported in (2005) 5 Choudhary v. Sherly Weigal Nain, reported in (2005) 5 Choudhary v. Sherly Weigal Nain, reported in (2005) 5 SCC 230 SCC 230 SCC 230. 7. Mr.Warunjikar, learned advocate appearing for the respondent no.1, submits that though the court had not expressly defined the term for which the receiver - 6 - was appointed by implication, the appointment of receiver must be deemed to have come to an end on decision of the suit and therefore the appointment of receiver does not and cannot continue. 8. Assuming that the appointment of receiver came to an end on decision of the suit, the court has ample power to continue the appointment of receiver even after the final decree if the exigencies of the case so require. This has been so held by the Supreme Court in the case of Hiralal Patni (supra). This Court, therefore, has the power to continue the appointment of the receiver, even if it is assumed that the term of the receiver has come to an end. 9. In my view, the facts and circumstances of the present case require the continuation of the appointment of receiver. There is a serious dispute between the parties regarding possession of the suit property. The appellants have a sale deed in their favour, but the trial court has held it to be not binding on the respondent no.1. The mutation entry as well as the order of tenancy court is in favour of the appellants (who claim under the respondent no.2). The Court Commissioner was unable to determine conclusively as to who was in possession of the suit property. However, - 7 - the Court Commissioner has also opined that the documents produced by the parties show that the appellants were in possession of the suit property. As against that, the trial court has held that the respondent no.1 was in possession of the property. On perusal of the compilation filed before me, it is not possible to come to a positive conclusion as to who is in possession of the property. Recording of any finding as regards the possession is premature especially when the first appeal has been admitted. The receiver was previously appointed by this Court and I see no reason not to continue the appointment of the receiver. 10. As regards the request of respondent no.1 to appoint him as an agent of the receiver, I am of the view that since the receiver is a Nazir of the court, he would not be in a position to personally cultivate the land and somebody would have to be appointed as an agent of the receiver. The question is whether the appellants or the respondent no.1 should be appointed as an agent of the receiver. In my view, the Nazir may invite bids from the appellants as well as the respondent no.1 as to the yearly royalty to be paid for the appointment of any of them as the agent. This would be appropriate to get best return. Hence, I pass the following order:- - 8 - (a) Appointment of the receiver made by this Court vide order dated 20th December 2007 is extended till the decision of this appeal. (b) The appellants and the respondent no.1, if they so desire, may submit bids to the receiver as to payment of royalty within 8 weeks hereof. If such bids are received, the receiver shall consider the same and appoint the appellants or the respondent no.1, as the case may be, whosoever gives the best offer as to royalty, to be an agent of the receiver. (c) Needless to say that the receiver is entitled to ask for security for payment of royalty in accordance with law. (d) The civil application is disposed of. (D.G. KARNIK, J.)