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2023 Supreme(Online)(Bom) 18501
BOMBAY HIGH COURT
N.J. Jamadar, J
THE TRUSTEES OF THE PORT OF BOMBAY – Appellant
Versus
SAYED ABDUL HAMID MOHOMUDASHAH KADRI and ANR – Respondent
CRR/353/2021
A Court Receiver must maintain possession of property until a decree is executed, and claims of possessory title require credible evidence and cannot rely on inconsistent assertions.
Headnote:(A) Code of Civil Procedure, 1908 - Order XXI Rule 36 - Court Receiver's role in execution proceedings - The Court Receiver appointed to execute a decree must maintain possession of the property until the decree is executed and the keys returned to rightful claimants. (Paras 1, 12, 47)
(B) Possessory Title - The claim of possessory title must be substantiated with credible evidence and cannot be based on inconsistent assertions or recent documents. (Paras 60, 62)
Facts of the case:
The Plaintiff, Mumbai Port Trust, sought possession of a suit building, originally leased to a company, from a third party, Mr. Sahebrao Kadam, who claimed possessory rights based on an alleged assignment. The Court Receiver was appointed to execute the decree but faced resistance from Mr. Kadam, who asserted his long-term occupancy. (Paras 3, 20, 24)
Findings of Court:
The Court determined that the Court Receiver had not taken actual possession of the suit building and that Mr. Kadam's claim to possessory title was questionable, warranting further inquiry. (Paras 67, 68)
Issues: The primary issues included whether the Court Receiver maintained possession of the suit property and the legitimacy of Mr. Kadam's claim to possessory title. (Paras 56, 68)
Ratio Decidendi: The court ruled that a Court Receiver's possession is protected, and any interference with that possession requires legal proceedings. The claim of Mr. Kadam lacked sufficient evidence to establish a legitimate possessory title. (Paras 56, 68)
Result: The Court Receiver was directed to take physical possession of the suit building, subject to Mr. Kadam establishing his claim within two months. (Order (i))
JUDGMENT :
1. By this Report, the Court Receiver, inter alia, seeks the following directions :
“(a) What steps the Court Receiver should take as the third party viz. Mr. Sahebrao Kadam is found occupying of ground floor (east and west wing), 1st floor (east and west wing), 2nd floor (east and west wing), 3rd floor (east and west wing), 4th floor (east and west wing) suit premises situated at Commerce House, Ballard Estate, Currimbhoy Road, Mumbai and he is doing repairing work of entire building ?”
2. The litigation has a chequered history spanning over half a century. It reflects the vicissitudes of the litigation brought about by a variety of factors; inertia and inaction on the part of the parties not in less measure. Thus, I deem it in the fitness of things to summarize the nature and outcome of the proceedings leading to the situation which obtains today where a third party is found to be occupying a substantial portion of the suit property.
3. Mumbai Port Trust (MPT) – the Plaintiff, is the owner of plot of land bearing City Survey No.39 / 1187 admeasuring 1012 sq. yards (the suit plot). The Plaintiff had leased the said plot to M/s. Hoare Miller and Company Ltd. for a period of 99 years commencing from 21 June 1920. The lessee constructed a building on the demised land known as “Commerce House” (the suit building). The said plot and the suit building are hereinafter referred to as ‘the suit property’, wherever warranted.
4. Under a Deed of Assignment, the lessee assigned its interest in the suit property to Sayed Abdul Hamid Mohammad Shah Kadri – Original Defendant No.1. Defendant Nos.1(A) to 1(H) are the legal representatives of the deceased Defendant No.1. The assignment was with the approval of the trustees of the MPT.
5. MPT instituted Suit No.517 of 1966 for the recovery of arrears of rent and possession of the demised premises. During the pendency of the said suit, Defendant No.1 was adjudged insolvent on 7 February 1967 and the Official Assignee was brought on record as Defendant No.2. A decree for possession and money was passed by this Court on 15 November 1967.
6. On 6 September, 1976, Chamber Summons No.239 of 1976 was taken out by the Plaintiff to appoint Court Receiver, High Court, Bombay, as Receiver in execution of the ex-parte decree dated 15 November 1967. By an order dated 6 September 1976, the said Chamber Summons was made absolute in terms of prayer clause (a). The Court Receiver came to be appointed as Receiver in execution.
7. On 21 June 1984, a learned Single Judge of this Court directed the Court Receiver to handover possession of the suit property to MPT – the decree holder after a period of one month thereof. In the meanwhile, the legal representatives of the judgment debtor were granted permission to remove the structures which were built on the suit plot. The Receiver was directed to handover the property to the decree holder with the superstructure, if the suit building was not removed.
8. The Defendants challenged the said order in Appeal No.612 of 1984. By a judgment and order dated 24 November 1987, the Division Bench set aside the said order. The Division Bench observed that the Court Receiver was appointed only as a Receiver to safeguard the property and to pay the rent and taxes and no more. If the decree holder wanted possession, they would only do so by resorting to execution proceedings under Order XXI of the Code of Civil Procedure (CPC). Since no possession warrant was issued in execution of the decree, possession could not be handed over to the decree holder. The Court Receiver came to be reappointed as the Receiver. The Report of the Court Receiver and the Chamber Summons taken out by the Decree holder were remanded back to the learned Single Judge for being disposed of in accordance with law.
9. On 4 December 2002, Court Receiver’s Report dated 7 October 2002 came to be disposed of with a direction to the Court Receiver to take steps to execute the decree in accordance with law. In a f
