SHATISH SHRIRAM PATIL Vs. JAGDISH SHRIRAM PATIL

JUDGEMENT

(1.) The present Chamber summons has been taken out by the defendant inter-alia seeking relief that the Court Receiver, High Court, Bombay should be directed to remove the respondent No. 4, his servants, agents and any other person claiming through him or on his behalf from use, occupation and possession of shop No. 7 situated on ground floor, Parshuram Building, 142, jaiprakash Road, Andheri (West) , Mumbai-400058 and that the said premises should be sealed by the Court Receiver. A further relief has been sought that the court Receiver should be directed to take necessary steps to collect and recover the arrears of rent from respondent No. 2 in respect of the said shop No. 7 on (West) , Mumbai-400058 and to continue to collect the same and continue to collect from respondent No. 2 herein. Some of the material facts of the present case are as under :

(2.) In the notice of Motion taken out by the plaintiff being No. 527 of 1988 in the present suit the Court Receiver, High Court, Bombay was appointed as court Receiver in respect of the suit premises, i. e. Parshuram Building. The said building consists of a ground plus first floor structure with a room on the terrace above the first floor. On the ground floor of the said building there are shop premises occupied by the various shopkeepers whereas the first floor consists of residential tenements. All these premises are given on tenancy. On 1-11-1988 the court Receiver has taken possession of the said premises and all the tenants have been attorned to the Court Receiver in accordance with the order passed by this court.

(3.) It is an admitted position that at the time of the Court Receiver taking possession of the said premises the tenants on the record of the Court Receiver and in possession of shop No. 7 was second respondent herein namely Vishwas kashinath Raikar. It is the case of the respondent No. 4 who is at present in use, occupation and possession of the said shop premises that sometime in or about 10-3-1998 an agreement for assignment of business was executed by and between the second respondent namely Vishwas Raikar who was running the business of Raikar Jewellers along with goodwill and tenancy rights in his favour. On 11-3-1988 a leave and licence agreement was executed by and between the fourth respondent and the said Vishwas Raikar and in pursuance of the said leave and licence agreement which was for a period of five years the respondent No. 4 has come into use, occupation and possession of the said premises. According to the fourth respondent he is in use, occupation and possession of the said premises since March, 1998 and on 5-4-1998 while conducting opening ceremony of the said shop premises an invitation was sent to everyone including the plaintiff and the defendant herein who are co-owners in respect of the building premises, it is further the case of the respondent No. 4 that on the date of the opening ceremony in fact the defendant purchased a "toe ring" from the said premises and thus he was aware that the defendant No. 4 is in use, occupation and possession of the premises and that he has consented for such use, occupation and possession by the respondent No. 4. According to the learned counsel for the respondent No. 4 the plaintiff and or the defendant therefore are not entitled to raise any such issue of unlawful occupation and possession of the respondent No. 4 in respect of the said shop premises.