:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPLICATION NO.470 OF 2008 CIVIL APPLICATION NO.470 OF 2008 CIVIL APPLICATION NO.470 OF 2008 IN IN IN SECOND APPEAL NO.168 OF 2008 SECOND APPEAL NO.168 OF 2008 SECOND APPEAL NO.168 OF 2008 Shri Rajesh Kirit Shah & Ors. ...Applicants. v. Shri Prabhakar Maheshwar Watave Since deceased through heirs and legal representatives, 1A. Smt. Usha Prabhakar Watave & Ors. ...Respondents. Mr.A.M.Kulkarni , adv. for the Applicants. Mr.S.S.Patwardhan , adv. for the Respondent Nos.1A to 1D. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 16th September, 2008. DATE: 16th September, 2008. DATE: 16th September, 2008. P.C. P.C. P.C. 1. Heard the learned counsel for both the parties. 2. Second Appeal is admitted on the ground of tenability of the suit itself. 3. Admittedly, the building consists of three floors in which the plaintiff had half share and one Vasudha was having half share. Defendants, who are appellants before the Court, were admittedly in occupation of the ground floor of that building as tenants. In 1966, the said Vasudha sold her half share in the said building to the defendants under registered sale deed and as per contents of the sale deed, :2: defendants were put in symbolic possession of the ground floor, which was already in their possession as tenants and in actual possession of the first floor. The suit for partition is already filed by the defendants/applicants on the basis of that sale deed and that suit is pending. Dispute in this matter is only in respect of first floor. Prima-facie, it appears that the defendants can not claim possession of the whole of the first floor even on the basis of sale deed though they are in actual possession. It can also be said that plaintiffs also prima-facie can not claim exclusive possession of the first floor though they can claim joint possession of the whole of the property. In the given circumstances, pending the appeal, it will be necessary to protect the interest of both the parties. 4. Therefore, the trial Court shall appoint the court receiver in respect of first floor and the court receiver shall appoint defendants/appellants as his agent and fix the royalty for the same. On being so appointed as agent of the court receiver, the defendants shall regularly deposit royalty amount from September, 2008 and they shall deposit the arrears from the date of suit till August, 2008 at the rate of 50% of the royalty, which may be fixed by the Court Receiver with the Court Receiver. Arrears shall be deposited within three months from this date. In case, the applicants fail to deposit arrears within stipulated period or fail :3: to pay royalty amount for any three months, the Court Receiver shall cancel their agency and take back possession. 5. Application stands disposed off accordingly. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)