:1: :1: :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 JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.1648 OF 2002 WITH FIRST APPEAL NO.1275 OF 2007 Navjeevan Vyayam Shala Kala Krida Mandal & Ors. .. Appellants. Vs. Ramniklal Nagardas Bhutta and Ors. .. Respondents. Mr.P.G.Lad for the applicants/appellants. Mr.K.A.Sampat for the respondents. CORAM : R.M.SAVANT, J. CORAM : R.M.SAVANT, J. CORAM : R.M.SAVANT, J. DATED : 31ST JULY, 2008. DATED : 31ST JULY, 2008. DATED : 31ST JULY, 2008. P.C.: P.C.: P.C.: . By the above civil application the applicants/original appellants seek stay of the judgment and decree dated 30th April, 2001 which is the subject matter of the above appeal. The applicants herein are the original appellants, who are original defendant nos.2 to 13 in the suit filed by respondent no.1 herein. The said suit was decreed and the decree in the following terms was passed: "Plaintiffs suit is decreed. It is declared that defendant no.1 and defendant no.2 to 13 are trespassers who have encroached upon the suit land that is bearing C.T.S.429A initially on its 6’ X 3’ that is the piece of land where Saibaba Temple was constructed and also ground levelling to the extent 30’ X 15’ was done so also upon the land over which two wooden posts were erected and a sign board was displayed under the name and style, "Navjivan Vyayamshala" so also later on over land where now large Saibaba :2: :2: :2: Temple is constructed with marble and other flooring, benches and all other constructions and fittings. Mandatory injunction is issued and it is herewith ordered that all the defendants their agents, servants etc. to remove the above encroachment from the above suit land (Exhibit 25). For this defendants are granted 3 months time. If the defendants fail to remove then plaintiffs can remove at the cost of the defendants. Also permanent injunction is issued restraining all the defendants, their servants, agents etc. from entering into the above suit land as shown in the plan Exhibit-25. Cost of the suit on the defendants. Decree be drawn up accordingly." 2. Respondent No.1 herein which is a public trust has filed, affidavit in reply of one Jaysukhlal Nagardas Bhutta opposing the civil application. In the said affidavit it has been interalia stated that the court receiver came to be appointed in respect of the suit property in question on 20th December, 1999 and respondent no.1 to the suit was appointed as agent of the court receiver. The Court Receiver took possession of the property in question on 24th January, 2000 and respondent no.1 was put in possession as agent of the court receiver. The suit was decreed on 30th April, 2000 and the decree in terms mentioned hereinabove was passed. It appears that thereafter on 1st November, 2005, respondent no.1 expired. It came to the notice of the trust :3: :3: :3: that the lock of Saibaba temple on the suit property illegally constructed by the petitioner was broken open by respondent no.5 and the activities of the said temple have been resumed in flagrant disobedience of the interim order appointing the Court Receiver as well as interference is caused when the property was in custodia legis. 3. The said position as averred in affidavit in reply was sought to be seriously disputed by Shri Lad, learned counsel appearing for the applicants. By placing reliance on observations made in the impugned judgment it is sought to be contended by Shri Lad that the applicants herein who claim to be in possession of the property were always in possession of the property during pendency of the suit and that false allegations are made in paragraph 5 of the affidavit in reply filed by Shri Bhutta. Shri K.A.Sampat, learned counsel appearing for respondent no.1 in support of his submission that the Court Receiver was in possession of the properties in question drew my attention to the order dated 20.12.1999 appointing the court receiver, court receiver’s report dated 30th January, 2000 and the notice of motion filed on behalf of Shri Patkar. The said documents, and the averments made in the affidavit in reply filed by Shri Patkar in the :4: :4: :4: Contempt Petition make it exfacie clear that the court receiver was in possession of the property from the time he has taken over possession and that the possession of the said property was in fact handed over to him by Shri Patkar, the secretary of the body which runs the Gymnasium. The case of the applicants, therefore, that they were in possession and that false averments/allegations are made in the affidavit in reply cannot be accepted. 4. The decree as passed against the applicants/appellants has three facets: one is declaration granted in favour of respondent no.1 that the applicants/appellants are trespassers, second is the mandatory order which requires the applicants/appellants to remove structures in question and the third is not to enter upon the suit premises. Since the first appeal of the applicants/appellants has been admitted, in my view, interest of justice requires that arrangement which was in operation during pendency of the suit, namely, that the court receiver to take possession of the suit property in question is required to be continued. The applicants/appellants having taken possession of the suit property in question which is in blatant and flagrant disregard of the order appointing the court receiver cannot be allowed to :5: :5: :5: continue in possession. The applicants/appellants would, therefore, handover possession of the suit property to the court receiver on the date that would be fixed by the court receiver. The Court Receiver to continue in possession of the suit property which was in his possession pending the suit. No relief, therefore, can be granted to the applicants/appellants in the above civil application. This order shall not preclude respondent nos.2, 3 and 4 to take such action as is permissible in law in respect of violation of the court orders. Civil application is, accordingly, rejected. The court receiver to act on a copy of this order duly authenticated by the Registry of this court. (R.M.SAVANT, J.) (R.M.SAVANT, J.) (R.M.SAVANT, J.)