Mr.Himanshu Sharma and Anar. v. Mrs. Kalavati P.Kankiya and Anr.

Bombay HC18 Mar 2005NMS/1175/2003

Case brief

AI extract

What is this about?

The court appointed a Court Receiver for suit premises to protect the plaintiff-owner's interest after a tenant fraudulently sold the property. The receiver shall take formal possession, potentially appointing the possessor as an agent, and fix provisional royalties.

What did the court decide?

Appointment of Court Receiver to take formal possession; authority to appoint occupant as agent; fixing provisional royalties.

What the court decided

AI extract

¶1

¶2

 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

¶3

 ORDINARY ORIGINAL CIVIL JURISDICTION

¶4

 NOTICE OF MOTION NO. 1175 OF 2003

¶5

IN

¶6

 SUIT NO. 1088 OF 2003

¶7

 Himanshu Sharma & Anr. .. Plaintiffs

¶8

 versus

¶9

 Kalavati P. Kankiya & ors. .. Defendants

¶10

 Mr.A.K. Saxena for the plaintiff.

¶11

 Mr.Prasad Pathare i/b R. Matkar for the defendant

¶12

 no.1.

¶13

 CORAM : D.G. KARNIK,J.

Mr.Himanshu Sharma and Anar. Vs Mrs. Kalavati P.Kankiya… — Property and Title | Bombay HC (2005)

¶17

 and defendant no.1. Neither the defendant no.1 nor
 defendant no.2 have filed any affidavit in reply. In
 the circumstances, the averments made in the
 affidavit in support of the motion are deemed to be

¶20

 2. The plaintiff is the owner of the suit
 premises and the defendant no.1 was the tenant.
 However, the defendant no.1 purporting to claim
 ownership sold the suit premises to the defendant
 no.2 and the defendant no.2 purchased the same. In
 the circumstances, the plaintiff has filed this suit
 for a declaration that he is the owner of the suit
 premises and for a declaration that the agreement
 between defendant nos.1 and 2 is null and void and
 not binding on him. Since the defendant no.1 was
 only a tenant, he could not have sold the ownership
 rights in the property to the defendant no.2. The
 defendant no.2 cannot get a title better than that of
 the defendant no.1. Since the defendant no.1 has
 fraudulently attempted to transfer the ownership
 right in the suit premises, it would be appropriate
 to appoint a Court Receiver to protect the interest
 of the plaintiff. Ofcourse, at this stage, it would
 not be appropriate to permit the receiver to
 dispossess the defendant no.2 who claims to be in
 actual possession of the suit property but to appoint
 the person in possession as an agent of the receiver.
 Hence, I pass the following order:-

¶22

 3. The Court Receiver is appointed as a receiver
 of the suit premises. The Court receiver shall take
 formal possession of the suit premises and if the
 person found to be in possession of the suit premises
 is willing, to appoint as an agent of the receiver
 subject to his executing an agreement in the usual
 form but without furnishing any security. The Court
 receiver however may fix the provisional royalty
 equivalent to the rent charged to the defendant no.1
 and permitted increase/taxes. If the person in
 possession fails to execute the agreement within a
 period of four weeks on being called upon by the
 Court Receiver to do so, or fails to pay royalty
 fixed by the Court receiver as mentioned above, the
 Court Receiver shall be entitled to take actual
 possession of the property.

Mr.Himanshu Sharma and Anar. v. Mrs. Kalavati P.Kankiya and Anr.

Case brief

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What did the court decide?

What the court decided

Parties & counsel

Coram

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Mr.Himanshu Sharma and Anar. v. Mrs. Kalavati P.Kankiya and Anr.

Case brief

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