pvr １ al666-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (Lodg) NO.666 OF 2011 IN NOTICE OF MOTION NO.1570 OF 2010 IN SUIT NO.979 OF 1982 1.M/s.Abis Constructions & Ors. ...Appellants vs. 1.M/s.A.H.Mistry & Co. & Anr. ...Respondents --- Mr.Ravi Kadam, Advocate General with Mr.D.Dhankar i/b. Pravin Tambe, for Appellants. Mr.K.K.Trivedi, 1st Asstt. to Court Receiver present. --- CORAM: D.K.DESHMUKH & ANOOP V. MOHTA, JJ. DATED: 29th November,2011. P.C.:- 1. Heard the learned Counsel appearing for appellants and the 1st Assistant to the Court pvr ２ al666-11 Receiver who is present in Court. The learned Counsel appearing for appellants states that respondent no.1 who is original plaintiff has been served. None appears for him. In any case presence of respondent no.1, for the order which we propose to make, is not necessary. The relevant facts are that suit no.979 of 1982 was filed by respondent no.1 for a decree of specific performance of the contract of the property which was subject matter of the suit which was predominantly open land. In that suit, on a motion made by the plaintiff, by order dated 5.11.1982 the Court Receiver of this Court came to be appointed as Receiver of the suit property. After appointment of the Receiver, on 25.11.1982 the Receiver put in a report, after taking possession of the suit property. The Receiver in that report noted that there are about six tin structures occupied by the 12 occupants on the land and that rest of the land is open and vacant. It is also stated in the report that At pvr ３ al666-11 the instance of Plaintiffs partner I have not posted any watchmen to guard the vacant portion of the suit land as the said partner of the plaintiffs have told me that Plaintiffs will be responsible for any encroachment. It appears that on 5.8.1997 the Court Receiver submitted another report. In that report the Court Receiver has stated thus:- I found that 3 structures standing on the said suit property by encroaching illegally about 8 X 40 sq.ft. by one Mr.Babulal, Mr.Shyamraj Yadav and Mr.Hansraj Yadav and on demanding the documents in respect of the said suit properties, the persons residing in the said suit structures and were present at site, refused to show me the same. I also found one Room encroaching unauthorisely about 10X20 sq.ft. and constructed with Bricks with Tin Sheets by one Mr.Chaganbhai Ghatkoparwala. I observed that One pacca structure pvr ４ al666-11 constructed illegally about 12 X 25 sq.ft. (on the Road side), with bricks wall with Cement Sheets Roof, by one Mr.Chaturi. I also observed that about six Buffalo s standing in the Gotha build up with Wooden beems. I also found that work of Rickshaw repairing carry out in the compound of the said suit property and on making inquiry with one Mr.Babu who was present at the place informed me that he is paying Rent to Mr.Laxmidhar, but he refused to tell me how much rent he is paying. The abovenamed Babu also refused to show me the documents in respect of the same. 2. It is thus clear that the Court Receiver thus found that apart from six tin structures occupied by the 12 occupants, now there are several structures raised unauthorisedly by several persons on the vacant part of the property. It appears that the defendants who are the present appellants addressed several pvr ５ al666-11 communications to the Receiver to take action for removal of encroachments. Ultimately on 12.1.2007 the Court passed an order discharging the Receiver in view of the encroachment on the land. That order reads as under:- The plaintiff s Advocate states that unauthorised structures have come upon almost on the entire suit land. The purpose of appointment of Court Receiver is completely frustrated. The plaintiff has got the receiver appointed in 1982. No purpose is served by calling upon the receiver to take action against the illegal encroachment after parties to the suit are actively pursuing their remedies in time and allowing the property to be depleted so extensively. Court Receiver is discharged without passing accounts and on payment of costs and expenses. Court Receiver shall hand over property to the party from whom he has taken possession. (emphasis supplied.) pvr ６ al666-11 In view of the directions contained in order dated 12.1.2007 to the Court Receiver to hand over property to the party from whom he had taken possession, the original defendants from whom the possession was taken by the Court Receiver took out Notice of Motion no.1570 of 2010 claiming direction to the Receiver to take necessary steps for restoring the suit property to the defendants from whom that property has taken by the Receiver in the year 1982 in the same condition. In effect, the defendants were seeking directions to the Receiver to take steps to remove the encroachment which are made on the land during the period when the Receiver was in possession of the property. That notice of motion has been disposed of by the learned Single Judge of this Court by order dated 19.7.2010. The order passed by the learned Single Judge reads as under:- 1. Court Receiver was appointed in the suit. He has been discharged. pvr ７ al666-11 Possession of the suit premises has not been handed over by the Court Receiver to either of the parties. Hence, this Notice of Motion is taken out at the fag end of the suit. In view of the order passed in the suit, the Court Receiver shall hand over possession to the Defendants only after the Defendants make payment to the Plaintiff as per the decree passed in terms of prayer (d)(i) of the suit. 2. The Notice of Motion is disposed of accordingly. 3. This order is stayed for 8 weeks. The present appeal is directed against this order. 3. The submission of the learned Counsel appearing for appellants is that once the Receiver is appointed on any property and the property is given in possession of the Receiver, the property is in custodia legis and the parties cannot deal with it, and therefore, the pvr ８ al666-11 responsibility is of the Receiver to take steps to protect the property in relation to which he has been appointed as Receiver. The learned Counsel placed reliance on the following observations from the judgment of the Supreme Court in the case of Kurapati Venkata Mallayya & Anr. Vs. Thondepu Ramaswami & Co. and another, 2 SCR(1963)Supp. 995. If any property is in custodia legis the contesting parties cannot deal with it in any manner, and, therefore, there must be some authority competent to deal with it, in the interest of the parties themselves. A Receiver who is placed in charge of the property on behalf of a court can be the only appropriate person who could do so. His function cannot be Limited merely to the preservation of the property and it is open to a court if occasion demands, to confer upon him the power to take such steps including instituting suits in the pvr ９ al666-11 interest of the parties themselves. We have also heard the Court Receiver. We have perused the record. In the present case, the Receiver was appointed on the property at the instance of the plaintiff who had filed the suit for decree of specific performance. The property was given as per the order of the Court in possession of the Receiver. It is clear from the report of the Receiver dated 25.11.1982 that at that time the Receiver found that there were six tin structures occupied by 12 occupants on the land and rest of the land was vacant. The plaintiff at whose instance the Receiver was appointed, assured the Receiver that guards need not be posted on the land and that the plaintiff would protect the property from encroachment. But the land was encroached by several persons when it was with the Receiver. The report of the Receiver dated 5.8.1997 gives description of the encroachments which came up on the land during pvr １０ al666-11 the period from the year 1982 to 1997. The Court by order dated 12.1.2007 discharged the Court Receiver because the Advocate appearing for plaintiffs informed the Court that because the land has now been encroached upon the purpose of appointing Receiver on the land is frustrated. The Court, therefore, discharged the Receiver. It is obvious that after the Court Receiver is discharged, the Court Receiver will have to hand over possession of the property to the person from whom the possession was taken by the Receiver in the year 1982. A direction to that effect is issued in the order dated 12.1.2007. The Receiver has taken possession from the defendants. Therefore, the possession of the property has to be handed over by the Receiver to the defendants. But it is implicit that the Receiver will hand over possession of the property to the defendants in the same condition in which he had received the property. No prejudice can be allowed to be suffered by the pvr １１ al666-11 defendants for something that has happened while the property was custodia legis. In our opinion, therefore, the learned Single Judge was not justified in disposing of notice of motion without making the order which was sought by the appellants. 4. So far as the civil suit is concerned, that civil suit has been decided, decree of specific performance has been refused to the plaintiffs. Therefore, now the defendants are entitled to the possession of the property, but because of the encroachment the Receiver cannot hand over possession of the property to the defendants. In our opinion, it is appropriate and in the interest of justice to direct the Court Receiver to take steps, firstly by approaching the Corporation for taking steps for removal of illegal structures that have come up on the land after the year 1982. It is made clear that so far as six tin structures which are mentioned in pvr １２ al666-11 the report dated 25.11.1982 are concerned, it is not necessary for the Receiver to take any steps to remove them. The Receiver may also, at the expenses of the defendants, seek legal advice as to what other steps the Receiver can take for removal of encroachments so that the defendants can be handed over possession of the property in the same condition in which it was received from them by the Receiver in the year 1982. In case, the Receiver is advised to institute a suit or take other legal proceedings against the encroachers, the Receiver shall do so in accordance with law at the expenses of the appellants. If necessary, the Receiver shall be free to seek appropriate orders from time to time from the Court. The appeal is disposed of. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.)