IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3271 OF 2008 IN SUIT NO.2677 OF 2008 Mahendra K. Salian & Anr. ...Plaintiffs Vs. Shashikant Appu Nair & Ors. ...Defendants --- Mr. Prachi Tatale for Plaintiffs Mr.D.A. Athavale for Defendant No.1 Mr. K.B. Adyamthya for Defendant Nos.2 and 3 ---- CORAM: V.M. KANADE J. DATED 12TH AUGUST, 2009 P.C. 1. The Plaintiffs have filed the suit against the Defendants seeking a declaration that the Plaintiffs are owners of the suit premises and for a declaration that Defendant No.1 is a trespasser in the suit premises and also for a direction, directing the Defendant No.1 to hand over quiet, vacant and peaceful possession of the suit premises and, lastly, for an order of permanent injunction, restraining the Defendant No.1 from transferring and/or alienating and/or parting with possession or creating any third party interest in respect of the suit premises. 2. The case of the Plaintiffs in brief is that the Plaintiffs entered into an agreement for sale dated 15th April, 2007 with the Defendant Nos.2 and 3, who were the owners of the suit premises. The agreement was duly registered with the Sub-Registrar of Assurances. It is the case of the Defendant Nos.2 and 3 that they were in exclusive use, occupation and possession of the suit premises. They have relied on the Shops and Establishment Certificate which stands in the name Defendant No.2 and the ration card showing the names of the Defendant Nos.2 and 3 to be in possession of the said premises. The electricity consumption bills were also in the name of the Defendant No.2. The Plaintiffs' case is that on 18th April, 2007, the Defendant Nos.2 and 3 handed over to the Plaintiffs, quiet and peaceful possession of the suit premises. It is the case of the Plaintiffs that on 21st May, 2007, when the Plaintiff No.1 had gone to the market at about 5.30 p.m., the Defendant No.1 had illegally trespassed into the suit premises by breaking open the locks. The Plaintiffs, therefore, went to the police station for lodging the complaint against the Defendant No.1 and when he reached the suit premises , he found that two persons were waiting outside the entrance of the suit premises, out of which one of them introduced himself as the Commissioner, deputed by the City Civil Court at Mumbai in Short Cause Suit No. 1996 of 2007 filed on behalf of the Defendant No.1. He claimed that he was in possession of the suit premises. The Plaintiffs have, thereafter, filed the present suit. In the said suit he preferred Notice of Motion and vide order dated 20th April, 2009 ad-interim relief was granted in terms of prayer clause (b). 3. The learned Counsel appearing on behalf of the Plaintiffs vehemently urged that he was put in possession of the premises on 18th April, 2007 and the Defendant No.1 had illegally trespassed in the suit premises on 21st May,2007. She submitted that articles which were found in the premises when the Court Commissioner appointed by the City Civil Court had been to the suit premises, indicated that they belonged to the Plaintiffs. She invited my attention to the order passed by the City Civil Court in the Chamber Summons which was taken out by the Plaintiffs for being added as a party Defendant in the suit filed by the Defendant No.1 herein. She further submitted that the Defendant No.1 was residing elsewhere and his name was struck off from the ration card. The adjoining room was purchased by the Defendant Nos.2 and 3 in the name of Defendant No.1 and he was occupying only one small room adjacent to the suit premises. She submitted that this is a fit case for appointment of a Court Receiver and that the Plaintiffs should be appointed as agent of the Court Receiver since Defendant No.1 had trespassed in the said premises belonging to the Plaintiffs. 4. The learned Counsel appearing on behalf of the Defendant No.1, on the other hand, submitted that the suit premises was in the name of his father as a tenant and after his demise, all the Defendants had equal share in the said premises. He submitted that the Defendant Nos.2 and 3 had illegally made an agreement, sold the premises to the Plaintiffs without his consent and, therefore, he submitted that the said agreement is null and void and did not convey any ownership rights on the Plaintiffs. He further submitted that the Defendant No. 1 was in possession of the premises which fact was established by the Court Commissioner's report, which clearly indicates that his articles were found in the suit premises. He denied the contention of the Plaintiffs' Counsel and the Commissioner's report stating that the Plaintiffs' articles were found in the suit premises. 5. After having heard the Learned Counsel for the Plaintiffs, the Defendant No.1 and the Defendant Nos.2 and 3, I am of the view that the ad-interim relief granted by this Court will have to be confirmed. In the present case, it is an admitted position that the suit premises originally belonged to the father of the Defendant Nos.1 and 2 and husband of the Defendant No.e and that after his death, the tenancy was transfered in favour of the Defendant No.3 Prima facie, therefore, the Defendant No.1 appears to have right in the said property. The agreement executed by the Defendant Nos. 2 and 3 in favour of the Plaintiff Nos.1 and 2 does not give absolute right of ownership in favour of the Plaintiffs. The issue, whether the Plaintiffs are the absolute owners of the suit premises, will have to be determined at the final hearing of the suit. Secondly, in the suit filed by the Defendant No.1 in the City Civil Court, a Court Commissioner was appointed, who in his report has clearly mentioned that the articles belonging to the Defendant No.1 were found in the suit premises. Perusal of the report, clearly indicates that one of the articles belonging to the Plaintiffs was found in the suit premises. Prima facie, therefore possession of the Defendant No.1 in the suit premises has been established. Under these circumstances, therefore, at this stage, the Plaintiffs cannot be appointed as an agent of the Court Receiver. However, in the interest of justice and in order to protect the suit premises, it would be appropriate if Court Receiver is appointed and the Defendant No.1 is appointed as an agent of the Court Receiver and is directed to pay royalty at the rate of Rs.5,000/- p.m. and security deposit of Rs.50,000/-. 6. Under these circumstances, the Notice of Motion is partly allowed in terms of prayer clause (b) and in terms of prayer clause (a), direction is given to the Court Receiver to take symbolic possession and appoint the Defendant No.1 as an agent of the Court Receiver and with further direction that the Defendant No.1 shall pay royalty of Rs.5,000/- p.m. and security deposit of Rs. 50,000/- from September, 2009 onwards. The said security deposit to be paid within a period of 12 weeks from today. Ad-interim relief granted by this Court by order dated 20th April, 2009 is confirmed. 7. Notice of Motion is disposed of in the aforesaid terms. 8. Hearing of the suit is expedited. The Defendants shall file their written statement within 8 weeks from today, failing which the matter will be transferred under the caption of undefended suit. V.M. KANADE J.