IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3304 of 2008. NOTICE OF MOTION NO.3304 of 2008. NOTICE OF MOTION NO.3304 of 2008. IN IN IN SUIT NO.1461 of 1992. SUIT NO.1461 of 1992. SUIT NO.1461 of 1992. Trevor Joseph Harald D’Sylva & Anr ..Plaintiffs versus A.A.Farms and others ..Defendants Mr.E.P.Bharucha Sr Counsel with B. Saraf, Mohan Salian and Ms. V., Shethe, Ayush Gupte i/b. Gagrats for the plaintiffs Ms. Shilpa Shangrajkar i/b. L.C.Tolat & Co. for the defendant No.3 Mr.Swapnil Bangur i/b.C.D.Patel for the defendant No.4 & 5. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 24th March, 2009. DATED : 24th March, 2009. DATED : 24th March, 2009. P.C. 1. By this motion the plaintiffs want the Order so as to have Receiver appointed in respect of the said property, more particularly described in para 3(a) of the plaint. They also want Order of injunction restraining defendants from creating third party right and or parting with the possession. Parties herein have completed the pleadings. 2. One Mrs. Marie C. D’Silva is stated to have executed a Lease Agreement dated 25.10.1989 in -2- favour of defendant No.1, a partnership firm represented by the original defendant Nos.2 and 3 in regard to the property more particularly described in the plaint para 3(a). The said lease was for a 10 years i.e. to say lease expired by efflux of time in the year 1999, as the lease period was for 10 years and that is how the plaintiffs had to apply for amendment of the plaint and seek declaration that the lease has expired by efflux of time and therefore the so called lessee i.e. defendant No.1 to 3 had no right to occupy the said property. It is noted that the original plaintiff Mrs. Marie died and hence the present plaintiffs are brought on record. It is required to be mentioned that the suit was pending and during the pendency of the suit the plaintiffs realised that on the suit property defendant Nos.4 and 5 are squatting. Hence plaintiffs applied for amendment of the plaint so as to join the defendant Nos.4 and 5 as plaintiffs wanted to have vacant and peaceful possession of the suit property. That is how the plaintiffs are prosecuting the suit. 3. The defendant Nos.4 and 5 have come out with the stand that defendant No.3 Anthony in his capacity as Assignor executed the memorandum of -3- understanding 15.5.2007 in favour of one M/s. Tirupati Balaji Enterprises, a firm of which defendant No. 5 is the partner. A perusal of the said memorandum of understanding clearly goes to show that the said Anthony, defendant No.3 agreed to assign whatever rights he had in regard to the suit property to defendant Nos.4. Ofcourse, this was done behind the back of the plaintiffs who were away from the suit property. Noting the presence of the board of M/s. Tirupati Balaji Enterprises,the plaint was again amended to bring on record necessary facts and to see that appropriate directions are sought against defendant Nos.4 and 5 and appropriate reliefs are sought. After amendment the present Notice of Motion was taken out so as to protect the interest of the parties. 4. It is required to be noted that the suit property is an agricultural land and cannot be used for non agricultural purpose. 5. The record clearly indicates that a Lease Agreement came to an end in the year 1999 and no further agreement has been entered into between the original plaintiffs or the heir/successor and -4- defendant Nos. 1 to 3 so as to renew the lease or to arrive at fresh understanding. If this is so, on 15.5.2007 the said Anthony could be said to be holding over, if at all it is treated that the lease dated 25.10.1989 was validly executed. In any case on 15.5.2007 said Anthony had no right in regard to the suit property and he could not have transferred his right in favour of a third party. In fact, said Anthony transferred the rights in terms of Memorandum of Understanding dated 15.5.2007. With this, I have heard learned Counsel on both the sides to decide as to how the motion should be disposed of. 6. The Counsel for the plaintiffs contended considering the manner in which the transactions have taken place behind the back of the plaintiffs it is necessary that the Receiver should be appointed in regard to the suit property. Counsel for the plaintiffs also submitted that since the original lease has come to an end, it would be proper if the plaintiffs are appointed as Agent of the Court Receiver because the property should revert back to the persons who had executed the lease agreement, or their successors. As against this, the learned Counsel for the defendant Nos.4 -5- and 5 tried to argue that this Court has no jurisdiction and the Small Causes Court will have the jurisdiction as the transaction is based on the original lease. 7. I am not inclined to accept this argument as the Court of Small Causes at Bombay shall have no jurisdiction to entertain the suit regarding open plot of land, particularly when the land is agricultural. The present suit is filed for recovery of possession on the basis of Transfer of Property Act and the Civil Court shall have jurisdiction. 8. The Counsel for the defendant No.s 4 and 5 tried to contend that option was exercised by defendant No.3 within the permissible period and therefore the lease was subsisting as of 2007. This argument cannot be accepted. Even it if is accepted that the option was exercised by defendant No.3, there is no document placed before the Court, said to have been executed between defendant No.3 or defendant No.1 on the one hand and the original plaintiff or her heirs. 9. In view of the aforesaid contentions, the -6- stand of the defendant Nos.4 and 5 that they are rightfully occupying the suit property cannot be accepted. The present occupation of the defendant Nos.4 and 5 is undoubtedly based on transaction of May 2007 and hence the assignor therein had no right whatsoever in regard to the suit land and therefore he could not have assigned any rights. 10. Counsel for the defendant No.3 supported the stand taken by the defendant Nos.4 and 5 and opposed the motion. 11. Having observed that defendant No.4 and 5 have no rights in regard to the suit property the question is what arrangement can be made to meet the ends of justice. 12. In my view, considering the manner in which the litigation has proceeded right upto May 2007, it is possible that the defendant Nos. 4 and 5 by joining hands with defendant No.3 may create rights in favour of some other person. Luckily, as of today there is no further transfer from the hands of the defendant Nos.4 and 5 to somebody else. The plaintiffs have been able to show prima facie that defendant Nos.4 and 5 have no right in repsect of -7- the suit property. In my view, this is a fit case where the Receiver, High Court, Bombay is required to be appointed. The next question is as to who should be appointed as Agent of the Court Receiver. In my view, as of today, the defendant Nos.4 and 5 occupy the suit property. Considering the rival contentions raised in the matter it would be proper if defendant No.5 is appointed as Agent of Court Receiver. As of today, the defendant No.5 would be the best person who can be appointed as agent of the Court Receiver, ofcourse on payment of royalty and furnishing security on usual terms. Since the Court Receiver is being appointed, there is no need to pass an Order of injunction in terms of prayer clause (b). Of course order in terms of prayer clause (b) will have to be passed till receiver takes possession. 13. For the reasons mentioned aforesaid, I pass the following Order. ORDER i. The Receiver, High Court Bombay is hereby appointed in respect of the Suit property described in paragraph 3(a) of the plaint. -8- ii. The Receiver shall take formal possession in regard to the suit property from whosoever is found in possession of the suit property. If the defendant No.5 is found in possession of the suit property, Receiver shall appoint defendant No.5 as agent of the Court Receiver on defendant No.5 executing usual undertaking and entering the agency agreement. iii. The Receiver shall fix the monthly royalty payable by the defendant No.5. The Receiver shall also fix the quantum of security to be furnished by defendant No.5. This shall be done by the Court Receiver as expeditiously as possible. Till such time the Receiver takes formal possession of the suit property there shall be injunction restraining the defendant Nos.3, 4 and 5 from creating third party rights or parting with possession in regard to the suit property. It is clarified that the Counsel for the defendant Nos.4 and 5 admits that as of today the defendant No.5 is in possession of the suit property. iv. If upon the Receiver visiting the suit site comes across somebody else in possession of the -9- suit property, other than defendant No.5, the Receiver shall take physical possession from the said person by using necessary force and if necessary police protection which shall ofcourse be provided by the concerned police station and retain the possession with him and submit report accordingly. v. Notice of Motion stands disposed of in above terms. The defendant NOs.4 and 5 to pay to plaintiffs costs of this notice of motion. vi. Authenticated copy of this order shall be served upon the Receiver. Upon service of such Order, Receiver shall act upon this order within four days thereof. vii. Suit to come up in usual course. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)