1 kambli/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 46 OF 2008 IN NOTICE OF MOTION NO.2040 OF 2006 IN SUIT NO.1808 OF 2006 ... Smt.Shakila Ansari & Anr. ...Appellants (Org.Defendants) v/s. M/s.Ravinder Silk Factory and Anr. ...Respondents (Org.Plaintiffs) ... Mr.Mehul Shah for the Appellants. Mr.Anirudha Joshi with Mr.Piyush Shah for the Respondents. ... CORAM: D.K.Deshmukh & SMT.R.P.SondurBaldota,JJ DATED: 9 th July, 2010 2 P.C.: 1. By this Appeal, the Appellants challenge the order dated 11 th September, 2007 passed in Notice of Motion No.2040 of 2006 in Suit No.1808 of 2006. That suit has been filed by the Respondents-Plaintiffs claiming to be the owner of survey No.52 Hissa No.15 and survey No.9 Hissa No.1 (part) of village Kurla. The Plaintiffs claim ownership of the plot on the basis of Conveyance dated 27-4-1973. It is the case of the Plaintiffs that the Defendants have encroached on part of their land. It appears that the Court had appointed a Commissioner for measurement of the land. The Report has been submitted by the Commissioner and from that Report it appears that the Defendants have encroached on part of the Plaintiffs land. The Court, 3 therefore, relying on the Report of the Commissioner has made an order for appointment of the Receiver and for calling bids for appointment of agent of the Receiver. 2. After having heard the learned Counsel for both sides, in our opinion, as the Defendants have been found to be in actual possession of the land, it will not be appropriate to actually dispossess the Defendants. In our opinion, therefore, following order would meet the ends of justice. O R D E R (i)The order of the learned single Judge, impugned in the Appeal, appointing the Receiver on the land which is alleged to be encroached upon by the Defendants is 4 confirmed. (ii)The Receiver, however, shall take only symbolic possession of the land and he is directed to appoint the Defendants as his agent to be in possession of the land. (iii)The learned Counsel for the Appellants has stated before us that the land form the aforesaid survey nos.,which is presently in his possession is only 2220 sq.ft. and that it is open land. The learned Counsel has also stated that the Defendant No.2 is using the land for commercial purpose. The Receiver, therefore, shall first take steps to demarket the land in possession of the Defendant No.2 and appoint him to be his agent to be in possession of the land on usual terms and conditions including royalty and security. The Receiver shall fix the royalty of the land by following 5 usual procedure keeping in view the statement made by the learned Counsel appearing for the Appellant/Defendant No. 2 that he is using the land for commercial purpose. (iv)The order of the learned single Judge to the above extent is modified. (v)Appeal disposed of. (D.K.Deshmukh, J.) (R.P.SondurBaldota J.)