S.R.Y. Ankineeduprasad and anr. Vs. S.R.Y. Srimatha and ors. - Court Judgment

B.S.A. Swamy, J.

1. The respondents in T.I.A. No. 40 of 1989 in T.O.P. No. 6 of 1956; TIA No. 41 of 1989 in T.O.P. No. 7/56; TIA No. 42 of 1987 in T.O.P. No. 10 of 56; TIA No. 43/89 in TOP No. 18 of 1956 filed these appeals i.e., S.T.As. 2, 3, 4 and 5 of 1990 respectively against the orders of the Estate Abolition Tribunal dated 9-3-1990 wherein the Tribunal having held that the petitioners therein, for brevity referred as maintenance holders, are entitled for ryotwari patta under Section 47(2) of the Madras Estates Abolition Act for larger extents restricted the final decree for an extent of Ac.134-86 cts of agricultural land which is in possession of the Court Receiver under orders of this Court dated 12-12-1974 in S.T.A.13/1974. Accordingly while directing the Advocate-Receiver to deliver possession of these lands to them directed the Advocate Receiver to continue to hold possession of the non-agricultural lands and garden lands. Since all the appeals arise out of a common order passed by the Tribunal and the appellants are the respondents in all those applications these appeals are being disposed of by a common order.

2. For the sake of brevity appellants herein are referred as the Principal Estate Holder and the respondents in these appeals as maintenance holders. Sri Durga Prasad Nayudu Bahadur second son of Principal Estate Holder filed O.S. No. 18 of 1880 for partition of Zamindari and separate possession of his share. Privy Council by its order dated 1-5-1890 held that the estate of Devarakota Estate being impartible estate descends to the eldest son of the last owner.

3. The original Estate Holder Sri Raja Ankineedu Prasad Bahadur-I of Devarakota Estate died on 1-5-1875 leaving three sons: Sri Mallikharjuna Prasad Nayudu Bahadur, Sri Durgaprasad Nayudu Badhadur and Sri Venkata Ramalinga Prasad Bahadur. Sri Mallikarjuna Prasad Nayudu Bahadur being the eldest son of the estate holder succeeded to the estate. Thereafter, his two younger brothers namely, Durga Prasad and Venkata Ramalinga Prasad sued him separately by filing Suit Nos. 10 and 13 of 1891 on the file of the District Court, Krishna for maintenance. During the pendency of these proceedings, Durga Prasad and his sons entered into a compromise with the Principal Estate Holder. Hence the dispute now remains between the children of the eldest son and third son of original estate holder, i.e., Mallikarjuna Prasad Nayudu Bahadur and Sri Venkata Ramalinga Prasad Bahadur. That litigation came to an end by the order of the Supreme Court in Civil Appeals No. 572-573 of 1962 on 21-9-1964. In the meantime Devarakota estate was taken over by the Government under Madras Estates Abolition Act on 7-9-1949. Subsequently, the maintenance holders filed applications under Section 45 of the Estate Abolition Act (hereinafter to referred to as the Act) before the Tribunal for fixation of compensation towards their maintenance claim and for grant of ryotwari pattas under Section 47 of the Act to the extent of their share in the private lands of the Principal Estate holder for which pattas were granted. The Tribunal by its judgment and decree passed a preliminary decree whereunder maintenance holders were given 1/50th share in the compensation as well as the land for which ryotwari pattas were granted in favour of the principal land Holders. On appeal, the share of the maintenance holders were reduced from 1/55th of the compensation as well as the patta lands. We are not referring to the various proceedings that have taken place during all these years in this judgment and we are only referring to the final result of the litigation for better understanding of the case. As per the version of the maintenance holders, the principal land holder was granted ryotwari patta for 8690.73 cts. and out of which each of the maintenance holders has to get 158.01 cts. towards their 1/55th share. Thereafter the maintenance holders seemed to have filed Execution Petition No. 14/1973 and they seemed to have filed application for appointment of Advocate- Receiver to take possession of the property and to manage the property till execution proceedings are disposed by contending that the Principal Land Holders are resorting to acts of waste and were alienating the lands that are going to be allotted to the maintenance holders. Those applications seemed to have been dismissed by the Tribunal and the maintenance holders filed appeals before this Court, STA No. 13/1974 and along with STA they also filed CMP 10677 of 1974 for appointment of Advocate- Receiver to take possession of the properties. Having noticed that the Principal Land Holder is alienating the properties affecting the interests of the maintenance holders, this Court by order dated 12-12-1974 directed the Tribunal to take the lands into Court possession and to manage them by appointing Advocate-Receiver. Sri K. V. Purnachandra Rao, Advocate was appointed on 20-4-1977 as Advocate Commissioner by the Tribunal to take possession of the remaining agricultural lands for which the Principal Land Holder was given ryotwari patta and to give those lands on lease for every year and deposit the auction proceeds. The Advocate-Receiver has taken possession of Ac.134.80 cts. of wet land pursuant to that order. Subsequently, the Tribunal passed similar order on 19-12-1975 with regard to garden lands in TIA 15 of 1975 in TOP 6/56 and the Advocate Commissioner has taken possession of the garden lands admeasuring Ac.82-80 acres. Subsequently, the principal Land Holder as well as S.V. Ramalinga Prasad died in 1976 and 1979 respectively and their L.Rs. were brought on record. Now by order dated 9-3-1990 the Tribunal passed final decree in the above three T.I.As referred supra. Questioning the said final decree proceedings the respondents preferred these appeals. Having heard the matter for considerable time the Court suggested to the parties that the matter could be given a quietus to this long unending litigation by entering into a compromise. Though principal land holder was reluctant initially having realized the difficulties in his way in the light of the various orders passed by the Courts at various points of time from 1956 onwards in favour of maintenance holders ultimately agreed for a compromise. The compromise memo entered between the parties was filed in the Court on 25-4-2003 whereunder principal land holder agreed to leave the garden lands to the share of maintenance holders apart from the other terms of the compromise.

4. During compromise talks they brought to the notice of this Court that final decree was not passed with regard to garden lands and there was a dispute with regard to the extent of land in S.Nos. 294/2 and 294/3 adjacent to fort. That apart it was brought to our notice that most of the land is covered by encroachments. While some have raised thatched huts, some have raised pucca constructions also. Having taken aback at the report that the lands were encroached by the outsiders when the properties were under the custody of the Court, we appointed an Advocate Commissioner by order dated 13-3-2003 to inspect the land covered by S.Nos. 294/2 and 294/3 popularly known as Parvathamma Thota and to arrive at the extent of land in those two survey numbers and to note down the extent of vacant land available as on that date, the extent of encroached land by huts and the extent of land occupied by pucca houses. We also directed the Advocate Commissioner to give notice to the encroachers and to find out the source of their title i.e., whether the occupiers purchased the land in their possession from any one, if so, from whom, or whether they encroached upon the lands. We also direct to take photograph reflecting the position prevailing on the land. The Advocate Commissioner filed his report. As per the report of the Advocate, the extent of land in S.No. 294/2 is Ac. 1-80 cts and the land in S.No. 294/3 is ac.10-05 cts. as per the survey undertaken with the assistance of Mandal Surveyor. He also stated that about 114 people encroached upon the land and they raised various types of houses and only five of them are pucca constructions. He also filed the field map along with his report with all details. Neither of the parties filed any objections to the report of the Advocate Commissioner and in all respects they accepted the report of the Commissioner. The maintenance holders brought to our notice that the other lands i.e., an extent of Ac. 10-68 cts covered in R.S.288/2 popularly known as Nimmathota and an extent of Ac.8-56 cts in S.No. 134/ 13 popularly known as Bayatithota which are under the management of the Advocate-Receiver were also occupied by encroachers. Hence having recorded the fact of receiving compromise memo we have given certain directions on 25-4-2003 with regard to the withdrawal of monies lying in the Court deposits. Since the receivers failed to protect the property under Court management, on 4-4-2003 we gave notice to the Receivers that were appointed by the Tribunal from time to time to look after the management of the properties to appear before this Court along with records pertaining to the suit schedule properties. On 26-2-2003 Sri K. Purnachandra Rao, Advocate-Receiver who has taken possession of the lands on 20-4-1977 appeared before the Court and he categorically stated by the time he took possession some encroachments were there and that suits were filed, against the encroachers. Since he got relieved of the appointment in 1988 he is not aware of the events that have taken place after he demitted the office of receiver. During his tenure no encroachments have taken place. The other two receivers though appeared in the Court did not bring to the notice of the Court the steps they have taken in the management of the properties diligently as an officer of the Court. As the maintenance holders will be getting only a paper decree having fought the litigation for over a century for no fault of them and they will be thrown into an unending litigation with the encroachers, we have decided to give notice to all the persons who occupied the lands that are under the Court management through Receivers and to adjudicate their rights before passing final decree in the matter and by order dated 27-6-2003 we directed the maintenance holders to implead all the unauthorized occupants to give effective disposal of the case. On 11-7-2003 CMP 14804 of 2003 in STA 5/90 was filed to implead the persons shown therein as Respondents 10 to 403 in the appeal. Likewise in other appeals, CMP 15113, 15114 and 15115 of 2003 filed in STAs.2, 3, 4/90 seeking eviction of the unauthorized occupants. Since the property is not yet divided among the maintenance holders and the entire properties are under the management of the Advocate Receiver we have decided to pass orders in S.T.A.5/90 and these orders will enure to the benefits of maintenance holders in other appeals also. The occupants received notices and filed their counters.

5. Sri Sadasiva Reddy filed Vakalath and filed individual counters for the proposed Respondents Nos. 242, 243, 250, 400, 255, 236, 245, 249, 252, 256, 258, 238, 239, 398, 399, 251, 254, 401, 240 and 250.

6. Sri Lakshminarayana filed Vakalath for Respondents 123, 150, 127, 129, 128, 135, 136, 157, 204, 200, 201, 205, 206, 126, 125, 195, 198, 67, 17, 64, 80, 104, 60, 29, 66, 69, 48, 76, 101, 68, 23, 34, 18, 22, 59, 97, 106, 116, 117, 111, 94, 93, 16, 44, 43 and 10.

7. Sri Ravi Sankar filed Vakalath for Respondents 168 to 170, 173,175, 176, 177, 55 to 69, 12, 13, 14, 15, 30, 31, 35, 38, 40, 41, 47, 50, 51, 52, 53, 54, 71, 72, 73, 74, 75, 78, 79, 82, 83, 84, 85, 86, 87, 88, 90, 91, 95, 96, 99, 103, 104, 105, 107, 109, 100, 110, 114, 115, 120 162 and.

8. Sri K. Ravi filed Vakalath for the Respondent Nos. 215, 163, 178, 179, 306.

9. Sri V.S.R. Anjineyulu filed Vakalath for the Respondents 311, 289, 337, 269, 271, 338, 332, 322, 386, 385, 389, 267, 329,372, 362, 345, 309, 310, 285, 314, 397, 396, 299, 291, 293, 358, 370, 262, 292, 387, 246, 247, 301, 334, 326, 300, 342, 349, 330, 384, 276, 283, 277, 274, 288, 394,379, 263, 264, 393, 120, 313, 261, 264, 224, 77, 268, 297, 296, 302, 307, 395, 403, 367, 348, 339, 374, 308, 298, 225, 275, 278, 279, 390, 295, 272, 273, 315, 316, 331, 347, 360, 237, 287 and 328.

10. Sri Raghu filed Vakalath for Respondent Nos. 220, 182, 183, 184, 187, 188, 209, 211, 219, 221, 222, 223, 244, 130 to 134, 137, 139, 140, 141, 142, 144 to 149, 153, 159, 190, 191,192, 194, 196, 202, 214, 224, 225, 226 to 235, 340, 351 to 354, 359, 366, 371, 373, 381, 388,392, 220,182,183, 184, 186, 187, 188, 209, 211, 219, 221 to 223 and 244.

11. Sri Y.V. Ravi Prasad filed Vakalath for Respondent No. 248.

12. Mr. Kanakarnedala Ravindrakumar filed vakalath for Respondents 121, 122, 155, 161 and 156.

13. Sri Mummineni Srinivas Rao, filed Vakalath for Respondents 294, 89, 259, and 257.

14. Though Mr. Y.V. Swamy filed Vakalath for Respondents 201, 185, 143, 202, 204, 323, 216, 207, 181, 193, 165, 166, 156, 217, 211 and 356 and Mr. A. Satya Prasad filed Vakalath for Respondents 19, 24, 21, 20, 69, 81, 112, 119, 39, 33, 98 and 113, they withdrew from the brief having realized the motive of those respondents in engaging them. Since no other advocate filed vakalath for those respondents, they were set ex parte.

15. As far as the encroachment of Archaka near the temple of Kasi Visveswara Swamy belonging to the family is concerned, the maintenance holders decided not to press their claim for his eviction.

16. Sri Sadasiva Reddy on behalf of his clients contended that his clients constructed their houses with the permission of the Principal Land Holder popularly known as Challapalle Raja prior to the appointment of Advocate- Receiver in the year 1974 and they cannot be asked to vacate the houses under their occupation. He nextly contended that the provisions A.P. Land Reforms (Ceiling on Agricultural Holdings) Act, Act 1 of 1973 are applicable to the lands in question and as such his clients cannot be evicted from the houses in their occupation. It is also his contention that his clients cannot be evicted summarily without following the due process of law since they are in occupation of the property for a considerable length of time. He also pleaded that their clients perfected their title to the property by adverse possession.

17. With regard to his first contention we verified the record filed by the Advocate Receiver before this Court and we find that all his clients were in occupation of the lands even before the Advocate Receiver took possession of the property and in fact the Advocate-Receiver filed suits against them seeking eviction. We have also noticed that since the Advocate appearing for the Receiver and the Receivers who succeeded Sri Purnachandra Rao failed to take prompt steps to protect the interests of the maintenance holders, the suits were dismissed. In some suits though they filed petitions for restoration, their fate is not known. Since the Receiver has already initiated legal proceedings for eviction of these respondents and they are in possession by the time the Receiver took possession of the lands, we are not passing any orders against them in this appeal. At the same time we have no hesitation to hold that the second and third Advocate-Receivers appointed in this case obviously colluded with the parties and allowed the matters to drift away. Hence we are inclined to give permission to the maintenance holders to take appropriate steps for restoration of the suits by filing necessary applications and proceed further in this matter. Any applications filed for restoration of the suits have to be allowed by the concerned Courts since the Court is bound to handover the property to the successful party in the condition in which it took possession of the lands to the successful party in the litigation ultimately. We may also state that initially the Advocate appearing for these occupants having received the legal notice from the Advocate-Receiver on 4-2-1976 has taken a stand that the lands in their occupation are not in S.No. 294/5. Subsequently by anti dated letter he requested the Receiver to withdraw the notice so that the tenants will be able to pay rents. Hence it is seen that they have entered into possession of these lands with the permission of the Principal Land Holder. Accordingly, we are keeping this issue open.

18. Coming to the next contention we have no hesitation to reject as the provisions of Land Ceiling Act will be applied only after physical possession of the lands was taken over by the maintenance holders and in the event of their being found to be surplus holders, they are at liberty to retain their land of their choice and surrender excess land which they desire to surrender if any. Hence it is not open to the occupants to contend that the possession cannot be recovered by the real owners from them.

19. Coming to the plea of adverse possession, even according to them they entered into possession of the lands with the permission of the original owner. When once possession is permissive, they cannot raise the plea of adverse possession. Hence this contention is also rejected.

20. As far as other respondents-encroachers are concerned the Counsel appearing for them not only filed their counters but also contended that their clients are in possession of the property for a long time and they are paying house taxes to the Gram Panchayat. Hence their possession cannot be disturbed. The Counsel appearing for the maintenance holders on the other hand brought to our notice that these respondents approached the Collector for assignment of house sites claiming to be landless poor and the Collector was in the process of allotting sites to them. They also brought to our notice that one Jagadish Prasad belonging to the third branch filed a suit, O.S. No. 20 of 1996 against the Principal Estate Holder and maintenance holders claiming partition of the plaint schedule lands into 30 equal shares and allotment of one such share to him and also for rendition of account of income from the date of suit and pass a decree for the sum found due, in his favour. His contention was that he was in joint and constructive possession of the suit schedule lands including the lands in the possession of the Receiver. Hence during the pendency of the suit between the parties, the parties cannot enter into a compromise and evict them from the suit schedule lands. With regard to O.S. No. 20 of 1996 we have to state that some of the maintenance holders have not even received notices in that suit and it is not known to what extent he will succeed in the suit. It is not known whether the said suit is maintainable in law or not in the light of the provisions of the Estate Abolition Act. Even if he succeeds in the suit he is likely to get Ac.1-00 of land. We should also keep in mind that the High Court, time and again was passing orders directing the Tribunal for passing the final decree at the earliest by fixing time from time to time from 1987 on wards and the first hope expressed by the High Court was in W.P. No. 1934 of 1982 and batch and S.T.A. No. 4/82 wherein this Court directed the Tribunal to conclude final decree proceedings within six months and thereafter periodically the Court was giving such directions which remained as a pious hope without yielding any fruitful result in the matter. At any rate the encroachers cannot take shelter under internal disputes between the family members. Now coming to the principal contention that they have perfected title to the land by adverse possession, we have to keep in mind that Sri K. V. Purnachandra Rao was appointed as Receiver to take possession of the lands and as per the records available he has taken possession of the lands on 20-4-1977. Thereafter he has taken permission of the Court to file suits against occupiers. The Tribunal in I.A. No. 15 of 1975 in T.O.P.6/56 by order dated 14-2-1979 permitted Receiver to file suits for recovery of arrears of rents by engaging A.C. Udayavarlu, Advocate. Thereafter the Receiver furnished list of 63 persons who are in occupation of the land as on 27-2-1979. After giving notices to these people suits were also instituted for their eviction. Subsequently in TIA No. 45 of 1987 in T.O.P. 2/56 the Advocate -Receiver filed a report stating that he has taken possession of the lands in Nimmala Thota, Parvathamma Thota and Bayati Thota and Pedda Kallepalle Thota. He also stated that he has gone to take possession of the properties. But some people who are in possession of some extents of the land put up houses in Nimmala Thota and Parvathamma Thota. Excluding the sites in possession of those people he was conducting auction to the remaining vacant land every year and depositing the sale proceeds in the Court. In the report the Receiver stated that the tenants did not pay him any rents though demanded by registered notices and he was forced to file the suits against them. It is also stated that execution petitions were filed in the suits that were decreed. From I.A. No. 64/90 in IA No. 15/75 in T.O.P. 671956 it is seen that most of the suits were dismissed for default and restoration applications were filed. The Advocate in his report dated 21-3-1988 furnished the suit number in I.A. No. 64/90 in I.A. No. 15/75 in T.O.P. 6 of 1956. From the above documentary evidence the persons who are in occupation of the property does not exceed 50. The rest of the land is vacant land. It is also on record that Sri Purnachandra Rao requested the Court to relieve him from the functions of Receiver and the Court having accepted his request due to his old age appointed one E.V.R. Ramana Murthy on 8-6-1988. Thus it is seen by the time the second receiver came into possession the occupants number does not exceed 50. Subsequently he was replaced by another Receiver by name Sri A.V. Prasad Rao. Those two receivers appeared before this Court on one occasion and failed to furnish the information on the steps taken by them to protect the land which is in the custody of the Court and what action they have taken against the unauthorized persons who are trying to encroach upon the land. From the report of the Advocate-Commissioner appointed by this Court it is seen most of the encroachment in Parvathamma Thota took place after 1990. Now it is established beyond doubt that these respondents encroached into the land while the same is in the custody of the Court in connivance with the Advocate-Receivers without consent and knowledge of the Court either prior to occupation or after occupation and such an action on their part is nothing but utter violation of Court orders and liable to be punished under the provisions of Contempt of Courts Act.

21. Now, what action to be taken by the Court is the moot question. Under Order 40, Rule 1(a) of Civil Procedure Code the Court is empowered to appoint a Receiver when pending adjudication of a litigation to receive and preserve the property and the object and purport of that provision is to maintain the position of the property as it is where it is and to see during the pendency of that suit property is not subjected to waste and destruction and to lease out the lands and collect the proceeds and ultimately hand over possession of the property to the successful party. The Court is bound to hand over the possession of the property in the condition in which it has taken over the management of the property to the successful party in the proceedings. The position of the Court through Advocate-Receiver is called 'Custodia legis' and intended to protect the rights of persons who have claims over the property. In Everest Coal Company Pvt. Limited v. State of Bihar and Ors., : [1978]1SCR571 , the issue that came up for consideration was whether a third party can file a suit against an Receiver appointed by the Court under Order 40(1)CPC without the leave of the Court. The learned Judges of the Supreme Court observed:

'that when a Court puts a Receiver in possession of property, the property comes under Court custody, the Receiver being merely an officer or agent of the Court. Any obstruction or interference with the Court's possession sounds in contempt of that Court. Any legal action in respect of that property is in a sense such an interference and invites the contempt penalty.'

22. In Anthony C. Leo v. Nandlal Balkrishnan and Ors., : AIR1997SC173 , the position of custodia legis was explained by their Lordships of the Supreme Court in Paragraphs 27 to 29 of the Judgment as follows:

'27. Mr. Nariman has submitted that the tenant was put to notice of the allegation of his illegal activities in the tenanted premises and was also given opportunity to raise his defences against such allegation. After giving the tenant reasonable opportunity to place his case, the Court after being satisfied that the tenant had indulged in illegal activities, not permitted to be undertaken in exercise of his right as a tenant, has passed the directions contained in the impugned order so that the properties in custodia legis are properly preserved during the pendency of the said suit. The landlords, despite such orders or directions of the Court, still retain the right to bring action for eviction under the Bombay Rents Act for the said illegal activities. In the aforesaid facts, no interference is called for and the appeal should be dismissed.

28. Giving our careful consideration to the facts and circumstances of the case and submissions made by the learned Counsel for the parties, it appears to us that a receiver is appointed by the Court when the Court entertains a view that for preservation of the properties in suit, till the rights of parties to the suit are finally adjudicated, such properties should be preserved by exercising control and supervision of the same through the officer of the Court, the receiver. The Court becomes custodia legis of the properties in suit in respect of which receiver is appointed. Such de jure possession of the Court through its receiver, however, does not bring about vesting of the properties in receiver or in Court free from incumbrances even pendente lite. Despite appointment of a receiver, rights and obligations of third parties in respect of properties in custodia legis remain unaffected. Where a receiver appointed by the Court is in actual physical possession of a property, no one, whoever he may be, can disturb the possession of the receiver and the Court may hold such person who disturbs receivers possession as guilty for committing contempt of Court. A man, who thinks he has a right paramount to that of receiver, must, before he takes any step of his own motion, apply to the Court for leave to assert his right. Grant of leave in such case is the rule and refusal to grant leave is exception (Everest Coal Company Pvt. Ltd. v. State of Bihar, : [1978]1SCR571 ). The rule that Receiver's possession will not be disturbed without leave of the Court is, however, not applicable if the receiver is not in actual physical possession of the property.

29. Since the properties in a suit is being managed, maintained and administered by the Court through receiver, the receiver is under an obligation to take all reasonable steps for preservation and maintenance of such properties. If for such preservation, action in civil or criminal Court is necessary, receiver is to draw the attention of the Court of relevant facts necessitating such legal action and take leave of the Court to institute appropriate legal proceedings for the preservation of the property. As the property does not vest free from encumbrances in custodia legis by annulling all rights and obligations attached to the property, the receiver cannot interfere with any right of the third party. Sub-rule (2) of Rule 1 of Order 40 of the Code of Civil Procedure provides: 'Nothing in this rule shall authorize the Court to remove from possession or custody of property any person whom any party to the suit has not a present right to remove.'

In Para 33 of the judgment while their Lordships of the Supreme Court considered the issue whether a tenant can resort to unauthorized and illegal activity in respect of tenanted premises when such premises is in custodia legis and observed:

'that the Court being appraised by the Receiver of such illegal activities of a tenant, thereby obstructing the Court's over all supervision and concern for preserving or maintaining the property in custodia legis, will be within its right to pass suitable order or direction against the tenant for prevention of illegal and unauthorized activities after giving the tenant reasonable opportunity to place his defences against allegation of unlawful and illegal activity. What should be the reasonable opportunity, must depend on the facts of each case. The Court, in such a case, should ensure broadly that the tenant is not deprived of the reasonable opportunity to which he would have entitled if an action against him in a Court of law had been brought on such complaint.'

23. Their Lordships further considered the issue when a third party raises defence who interferes with the possession of the Receiver has to be adjudicated summarily or direct the receiver to file a regular suit for adjudicating the dispute concerning the third party. In Usha Harshadkumar Dalal v. Org Systems and Ors., 2000 (2) ALD 19 (SC) = AIR 2000 SC 2719, the Landlord-appellant filed a suit for partition and allot his share in the said property and sought various interim reliefs including appointment of Court receiver on the original side of Bombay High Court. Single Judge by his order dated 13-2-1978 granted ad interim order whereby Court Receiver of Bombay High Court was appointed with a direction to take possession of the suit property and manage the same and to do other incidental things in relation thereto. When the Receiver came to be appointed, the premises in question was found to be in actual possession of Suhrid Geigy Trading Limited and therefore the Receiver took symbolic possession without disturbing its possession. Sometime thereafter the said order was also confirmed, Sometime, thereafter, the said company seemed to have inducted another company into possession of the property. In those circumstances, some of the co-owners took chamber summons No. 436 of 1996 on 17-4-1996 bringing to the notice of the High Court that when the Court Receiver took symbolic possession of the building, Suhrid Geigy Trading Limited was in occupation. But now the said premises was occupied by the first respondent, ORG systems. Stating so the applicants sought for appropriate orders from the Court by directing the Court Receiver to submit a report to the High Court and recover possession from the first respondent. The first Respondent, ORG systems filed additional affidavits stating that under amalgamation scheme approved by the Gujarat High Court in November, 1979 the name of Suhrid Geigy Trading Limited changed to S.G. Chemicals and Pharmaceuticals Ltd. and by an order dated 27-3-1981 passed by the Gujarat High Court, a scheme of amalgamation was approved whereby the said S.G. Chemicals and Pharmaceuticals Ltd. (Transferor) was amalgamated into Amabala Sarabhai Enterprises Limited (Transferee). Pursuant to the said amalgamation of S.G. Chemicals and Pharmaceuticals Ltd. with Ambalal Sarabhai Enterprises Limited was given possession of the said premises. Hence the possession by ORG systems cannot be said to be unauthorized. On the above pleadings the High Court vide judgment dated 8/9th December, 1997 held as hereunder:

'Hence, so far as this chamber summons is concerned, the same is not maintainable and, therefore, stands rejected. Respondents are directed not to create further subletting either in favour of their sister concerns or third party.'

That order was assailed before the Supreme Court. The question that fell for consideration in this case was as to whether induction of the first respondent in the premises without leave of the Court and/or without any intimation to the Court Receiver will be valid or otherwise. The Court answered the question in the following words:

'It is well settled principle that when a Court Receiver is appointed in respect of any property it is said to be in custodia legis and Court holds the property for the benefit of the true owner. The Court Receiver acts on behalf of the Court. Even the Court Receiver will have no power to deal with such property without the leave of the Court. It is the duty of the Court Receiver to maintain the status quo and also to protect the property from being put to waste or allow it to diminish its value. The Court Receiver cannot encumber the property in any manner without the leave of the Court. It is the obligation of the Court as well as the Court Receiver to preserve and maintain the property as far as possible and practicable in the same form when it was taken in possession.'

Their Lordships approved the judgment of the Anthony C. Leo's case (supra) and held that when a Receiver came to be appointed in the suit filed by the landlord on the original side obviously he could not have better rights to enforce the cause of action accrued under the Bombay Rent Act. It is in these circumstances the Supreme Court in Paragraph 34 has observed as under:

'34. It appears to us that since the Court must be presumed to be fully unbiased in deciding the allegation of unauthorized and illegal activities of a tenant causing prejudice against the lawful owner in the matter of preservation and maintenance of the property pendente lite, the necessity of adjudication of such dispute by another Court by bringing a legal action before it, as a matter of course, is neither necessary nor expedient. It, however, should be made clear that if for purpose of deciding the dispute of unauthorized and illegal activity affecting maintenance and preservation of the property in custodia legis it becomes necessary to determine any right claimed under a statute or flowing from some action inter parties as may be pleaded and required to be decided. It is only desirable that the Court would refrain from such determination in the summary proceeding initiated before it on the complaint of the receiver or a party to the suit and the Court will direct the receiver to seek adjudication of the dispute before a competent Court by bringing appropriate legal action. Save as aforesaid, it will not be correct to contend that in no case, the Court, exercising control and supervision of the property in a suit by appointing a receiver will be incompetent even to pass direction against a third party for the purpose of preservation of the property, once such third party pleads defence in justification of his action. The question of summary adjudication by the Court appointing the receiver or relegating the receiver to a regular suit for adjudication of the dispute concerning third party will depend on the nature of dispute and the defence claimed by the third party.'

Their Lordships further observed as follows:

'We must, however, make it clear that we are not laying down a broad proposition that in every case the Receiver can resort to the summary proceeding of this nature. The question would have to be decided by the Court with reference to the pleadings of the parties and the proof thereof.'

24. From these decisions the following principles can be deduced. When once a Receiver is appointed in respect of any property it is said to be custodia legis and the Court holds the property for the benefit of true owner. The Court Receiver acts on behalf of the Court and is expected to preserve, protect and maintain the property from being put to waste or allow it to diminish its value. Even the Court Receiver has no power to deal with the property without the leave of the Court, he should not encumber the property in any manner without the leave of the Court. The Receiver appointed by the Court in a pending suit cannot have better rights than that of the landlord. If the property is put to use unauthorizedly or illegally under the custody of the Receiver the necessity of adjudication of such dispute by another Court by bringing a legal action before another Court as a matter of course is neither necessary nor expedient. The Court can itself pass appropriate orders by following summary procedure and by observing principles of natural Justice. Of course, the learned Judges observed that if the third party pleads a valid and sustainable defence in support of his action the question of summary adjudication by the Court may not be desirable and the receiver may be relegated to a regular suit concerning the third party. At the same time their Lordships made it clear that it will depend on the nature of the dispute and the defence claimed by the third party. Whether a Receiver has to adopt summary proceedings or to approach a regular Court for adjudication of the dispute depends on the facts of the case and the nature of the defences taken by the third party in justification of his action.

25. In the case on hand while the first receiver placed sufficient material before the Court to show that he has taken all precautions to maintain, preserve and protect the property under his custody, the second and third receivers appointed in this case utterly failed in discharge of their duties and to our mind it appears that they colluded with third parties and allowed them to occupy the land unauthorisedly, they have not taken any steps to prevent the unauthorized encroachments by third parties nor they brought this fact to the notice of the Court and obtained appropriate orders for protection of the properties.

26. Keeping the above principles we feel that it is the bounden duty of the Court to hand over possession of the property in the condition in which it has taken possession to the successful party. In fact the Supreme Court held that any interference with the possession of the Receiver amounts contempt of Court and the Court can punish them by initiating contempt proceedings. Hence we have given permission to the maintenance holders to implead all the unauthorized occupants and give an opportunity to know their case before passing any orders. These occupants having received notices appeared before the Court duly represented by their Counsel. These occupants except stating that they are in possession of the property for a longtime they never contended that they acquired title to the property through some one. We have sufficient evidence before us that they are not in possession of the property prior to 8-6-1988 the day on which the first receiver was discharged and the second receiver was appointed and the encroachment made by them are subsequent to that date. Hence they cannot plead adverse possession against the Receiver. At any rate, they could get into possession of the land with the active connivance of the Court receivers without the knowledge or consent of the Court on whose behalf the Receiver is holding the property. Such an action on the part of occupants as well as the Receivers is the result of the fraud played by them on the Court. Since fraud unravels everything they cannot setup the plea of adverse possession to justify their highly objectionable conduct. Accordingly we reject their contention that they perfected their title by adverse possession and declare them as unauthorized occupants having interfered with the possession of the lands in the custody of Court.

27. Instead of initiating contempt proceedings against them we are inclined to implead all the occupants and to pass the final decree in the following terms: The Registry is directed to draft the final decree proceedings in terms of the compromise memo filed by the contesting parties i.e., the appellants and respondents as shown in the compromise memo in S.T.A. Nos. 2, 3, 4 and 5 of 1990; (2) Since the principal estate holder withdrew from his claim over the garden lands in possession of the Advocate - Receiver, the maintenance holders are entitled to take possession of the garden lands from the Receiver the lands (1) R.S.294/2 and 3 admeasuring Ac.11-85cts. situated in the Panchayat Limits of Challapalle (2) R.S. No. 288/2 admeasuring Ac.10-68cts. known as Nimmala Thota in the Panchayat Limits of Challapalle and (3) R.S. No. 134/13 ad measuring Ac.8-56cts. popularly known as Bayati thota in the Panchayat Limits of Challapalle; and in R.S.Nos. 1139, 1140, 1141 and 1142, 1144 and 1145 of Kallepalle village the extent of Ac.30-95cts. The claims of the principal land holders and the maintenance holders are governed by the compromise memo filed by them in full and final settlement of the dispute.

28. Coming to the unauthorized occupation of the lands by the encroachers they are being impleaded as Respondents 10 to 403 in STA No. 5/90 and the orders passed in this appeal will enure to the benefit all the maintenance holders in STA Nos. 2, 3, and 4 of 1990.

29. The maintenance holders are given liberty to take steps for restoration of the suits filed by the first receiver against the persons who are in occupation by the time the first Receiver took possession of the property on 20-4-1977. The second and third receivers appointed by the Court in whose custody the property was, have miserably failed in pursuing the litigation deligently and the maintenance holders have no say at that point of time since the property is in the Court custody and they cannot be found fault for the lapses committed by the Receivers as well as the Advocate. They cannot be penalised and made to loose the property for no fault of them. Since the Advocate appointed by the Court for filing suits against them committed a grave professional misconduct in not pursuing the litigation to its logical end and also kept the Court in dark, the Courts are directed to allow those applications as and when any applications are filed for setting aside the order of dismissal or for restoration of the suits or for condonation of delay infilling the applications.

30. Coming to the other respondents they are declared as encroachers and they are in unauthorized occupation of the property. While the property was in the Court custody the second and third receivers appointed in this case failed to inform the Court about the unauthorized occupation made by the individuals from time to time and failed to protect the property. In fact the Court expected these unauthorized occupants to come up with some proposal for settling the matter amicably. But they did not make any whisper either in their counters or in the Court and they do not come forward with any compromise proposals. Hence without relegating the Maintenance holders to another round of litigation for adjudication of the dispute we have no option expect directing their eviction from the garden lands specified above since they have no valid defence. In fact to our mind there is no dispute at all in this case since the encroachers followed the rule of 'might is right'. They are given three months time from the date of the receipt of certified copy of the order to deliver vacant possession of the land by removing unauthorized structures raised by them. In the event these unauthorized occupants failed to vacate the land under their occupation within the stipulated time, the maintenance holders are given permission to file execution petitions to get this decree executed. The executing Court should keep in mind that the maintenance holders are fighting litigation for over a century and they got pittance of their share in the lands for which the principle land holder is given ryotwari pattas after Devarakota Estate was taken over by the Government under the Estate Abolition Act on 7-4-1949.

31. In the light of the foregoing discussion CMP No. 14804 of 2003 in STA 5/90 filed by the Maintenance Holders for impleading encroachers of the land as Respondents 9 to 407 in the appeal is allowed and they shall be impleaded as party-Respondents 9 to 407 in STA No. 5 of 90 while drafting final decree. This Court in exercise of inherent powers under Section 152 CPC direct the Registry to implead these Respondents as respondents in ST1A Nos. 2, 3, 4 of 1990 also. No orders need be passed in CMP No. 15113/2003 in STA. 12/90, CMP No. 15114/2003 in STA 3/90, CMP No. 15115 of 2003 in STA No. 4/90 filed by the Maintenance holders who are respondents in these appeals seeking eviction of illegal encroachers from the lands mentioned therein in the light of the orders passed above. Accordingly, these CMPs, are dismissed as unnecessary. No order as to costs.