Mrs. Shahjahan Gulfam Shamani Vs Vinod Kumar Takhatmal Kachhara and 2 Ors.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION
 APPEAL NO. 165 OF 2006
 IN
 NOTICE OF MOTION NO. OF 2006
 IN

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 SUIT NO. 93 OF 2005

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 Mrs. Shahjahan Gulfam Shamani ]
 Residing at Room No. 501, ]
 6th Floor, 2-B Uttam Building, ] Appellant
 Dr. Ram Manohar Co-operative Housing ] (Original deft.
 Society Ltd., Taximen Colony, ] No. 3)
 Kurla (West), Mumbai - 400 070. ]

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 Versus

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 1) Vinod Kumar Takhatmal Kachhara ]
 of Mumbai, Indian Inhabitant ]
 residing at 4/A, Venus Regency ]
 Navroji Lane, Ghatkopar (West), ]
 Mumbai - 400 086 ]

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 2) Sohanlal Vardichand Dhakad, of ] Respondents
 Mumbai, Indian Inhabitant, ] Original
 residing at 2/B, Mahavir Bhavan, ] Plaintiff,
 Sarveshwar Mandir Marg, ] Defendant
 Kurla (West),Mumbai - 400 070 ] nos. 1 & 2
 and also at Mangal Jewellers, ] respectively)
 29-C, Agarwal Market, ]
 Vile Parle (East),Mumbai - 400 057 ]
 3) Mr. Sahajahan Gulfam Shamani ]
 Residing at Room No. 501, ]
 6th Floor, 2-B Uttam Building, ]
 Dr. Ram Manohar Co-operative ]
 Housing Society Ltd., ]
 Taximen Colony, Kurla (West), ]
 Mumbai - 400 070. ]

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 Mr. Pratap Singh, Advocate for the Appellant.

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 Mr. T.N. Subramaniam, Senior Advocate i/b Sawant
 Associates for Respondent No. 1.

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 Mr. Dipan Merchant,Senior Advocate for Respondent no.2.

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 CORAM : KSHITIJ R. VYAS, C.J. &

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 ABHAY S. OKA, J.

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 DATE : 13TH JULY, 2006

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 P.C.

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 1. The Appellant is the third defendant in a suit
 filed by the first respondent in this Appeal. The
 Appellant has taken exception to the judgment and order
 dated 27th January, 2006 passed by the learned Single
 Judge in Notice of Motion No. 100 of 2005 in Suit No.
 93 of 2005. By the impugned judgment and order, the
 learned Single Judge granted Prayer clause (a) of the
 Notice of Motion. Prayer clause (a) is for appointment
 of Receiver of the Shop No. 1 on the ground floor of
 the building "Shreddha" on Plot of land bearing City
 Survey No.278 and 279 situate at Belgarmi Road, Kurla,
 Mumbai and for appointment of the first respondent-
 plaintiff as the Agent of the Court Receiver without
 any security or compensation.

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 2. The learned counsel appearing for the Appellant
 submitted that the Appellant is in settled possession
 of the Shop No. 1 as well as the basement below the
 shop No. 1 and therefore by appointing Receiver, he
 cannot be dis-possessed. He submitted that the first
 respondent, the second respondent (original- the first

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 defendant) and one Mrs. Seemadevi Bherulal Jain are
 the co-owners of the Plot on which the suit shop
 premises is situated. He submitted that he has
 purchased the suit premises by an Agreement for Sale
 executed by the first defendant on behalf of M/s Shah
 Enterprises of which the plaintiff was a Partner. He
 submitted that there is material on record to show that
 on 16th May, 2004 the Appellant had arranged
 inauguration function of a Dental Clinic in the suit
 shop and the basement and the said function was
 attended by the first respondent- plaintiff himself
 along with the Architect of the building. He placed
 reliance on Photographs taken on that day which are
 annexed to the Affidavit in reply to the affidavit
 filed before the learned Single Judge. He submitted
 that admittedly the original first defendant was a
 Partner of M/s Shah Enterprises. He submitted that
 whether the firm is dissolved or not and whether first
 respondent has become owner of the property of the firm
 or not are the questions which are to be decided by the
 learned Single Judge at the time of trial. He
 submitted that as per the directions of this Court
 issued on last date, the Appellant has obtained
 possession of the shop premises from Dr. Suhail Ahmed
 Shafique Ahmed Gunwan and now the Appellant is in
 exclusive possession of the same. He invited my
 attention to Affidavit-cum-Undertaking filed on behalf
 of the Appellant by her Attorney Mr. Gulfam Ahmed who
 is her husband.

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 3. Shri. Subramaniam, the learned Sr. counsel
 appearing for the first respondent pointed out that the
 Appellant has taken the suit premises from the first
 defendant who ceased to have any right, title and
 interest in the premises after dissolution of the Firm.
 He pointed out that the Title Certificate which is
 referred to in the Agreement for Sale executed in
 favour of the Appellant itself records that the first
 defendant has no right in respect of the property after
 dissolution of the Firm. He submitted that is the
 reason why the finding has been recorded by the Single
 Judge that the Appellant is a trespasser. He pointed
 out that the Appellant is unauthorisedly using basement
 below the suit shop premises. He pointed out that the
 earlier Bench had issued notice to the Municipal
 Corporation of Greater Bombay. He stated that Shri.
 D.H. Mehta appearing for the Corporation stated before
 the Court that unauthorised work of the basement cannot
 be regularised. He submitted that the Appellant is a
 trespasser both in respect of shop premises and the
 basement below it. He therefore submitted that no
 interference is called for.

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 4. We have considered the submissions. The
 constituted Attorney and the husband of Appellant has
 filed an Affidavit. In the said Affidavit, it is
 stated that third party which was in possession of the
 shop has vacated the shop and now the shop and basement

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 are in possession of the Appellant. Prima facie, the
 Appellant was in possession of the shop in respect of
 the Receiver is appointed on the date of institution of
 suit. The Appellant claims to be in possession on the
 basis of an Agreement for Sale executed in his favour
 by one of the partners of erstwhile Firm in which even
 the plaintiff was a partner. There is some material on
 record to show that the plaintiff attended inauguration
 ceremony of a Clinic which was arranged by the
 Appellant- third defendant in the suit shop.
 Considering all the findings which are recorded by the
 Single Judge, it is difficult to find fault with the
 order of appointing the Court Receiver. However the
 question is whether the Appellant who is in possession
 can be thrown out by appointing the plaintiff as an
 Agent of the Receiver.

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 5. As stated earlier, the Appellant was in
 possession of the suit shop on the date of the suit.
 Though prima facie, it is found that the vendor of the
 Appellant had no rights after the dissolution of the
 firm M/s Shah Enterprises, the parties will have to
 lead evidence on the basis of which final conclusion
 regarding the rights of the parties will have recorded
 after trial of the suit. We are of the view that the
 Appellant cannot ousted from possession of the suit
 shop especially when the Appellant has taken back
 possession of the shop from third party. We are of the
 view that the Appellant deserves to be appointed as the

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 Agent of the Court Receiver subject to usual conditions
 regarding payment of royalty and security.

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 6. Shri. Subramaniam, learned counsel for the
 first respondent- plaintiff submitted that the basement
 below shop has been unauthorisedly constructed and
 occupied. Therefore Appellant should be restrained
 from using the basement and Receiver should be ordered
 to seal the basement. In the Notice of Motion taken
 out by the first respondent on which the impugned order
 has been passed, the prayer for appointment of Receiver
 is confined to Shop No.1 on the ground floor. In the
 Notice of Motion no relief is prayed for as regards the
 basement. Therefore the first respondent will have to
 take appropriate proceedings seeking appropriate relief
 in respect of the basement. In this Judgment we have
 made no adjudication on the question whether the
 Appellant is in possession of the basement. However,
 if the Appellant is in possession, he cannot use the
 same contrary to law. In any event, the Municipal
 Corporation is free to take legal action in accordance
 with law.

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 7. Hence, we dispose of the appeal by passing
 following order :

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 i) The impugned judgment and order is
 modified. The order appointing Court Receiver,
 High Court, Bombay in terms of Prayer Clause

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 (a) of the Notice of Motion is confirmed with
 the modification that the Appellant will be

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 appointed as Agent of the Court Receiver in
 respect of Shop No. 1 which is subject matter
 of Prayer Clause (a). The agency will be
 subject to usual conditions regarding security
 and royalty.

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 ii) It will be open for the first

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 Respondent to take out appropriate proceedings
 for seeking appropriate relief in respect of

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 basement below the shop of premises. It is
 made clear that this order shall not be

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 construed to mean that we have permitted the
 Appellant-third Defendant to occupy the
 basement. The Municipal Corporation will be

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 free to take action in accordance with law.

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 (KSHITIJ R. VYAS, CHIEF JUSTICE)

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 (ABHAY S. OKA, J.)

Mrs. Shahjahan Gulfam Shamani v. Vinod Kumar Takhatmal Kachhara and 2 Ors.

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Mrs. Shahjahan Gulfam Shamani v. Vinod Kumar Takhatmal Kachhara and 2 Ors.

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