Bombay High Court
Bhupendra Damjibhai Tank vs Renu Balwant Maru on 23 February, 2026
2026:BHC-OS:4864
sr.1-ia(l)-937-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TRUSHA
TUSHAR ORDINARY ORIGINAL CIVIL JURISDICTION
MOHITE
Digitally signed by
TRUSHA TUSHAR
MOHITE
Date: 2026.02.23
14:52:56 +0530
INTERIM APPLICATION (L) NO. 26145 OF 2025
IN
SUIT NO. 422 OF 2012
Bupendra Damjibhai Tank & Ors. .. Applicants
IN THE MATTER BETWEEN:
Renu Balwant Maru w/o Shri. Balwant Maru .. Plaintiff
Versus
Bupendra Damjibhai Tank & Ors. .. Defendants
Adv. Rohan Cama a/w Adv. Rupesh R. Lanjekar for Plaintiff and
Defendant No.1 in IA(L)/937/2025.
Mr. Anil V. Anturkar, Senior Advocate a/w Adv. Joel J. Carlos, Adv.
Manish Pradeep Gitay i/b Adv. Joel J. Carlos for Defendant Nos. 1,3 and
4.
Adv. Manish Pradeep Gitay for Defendant Nos. 2(a) to 2(d).
Adv. Anish Karande a/w Adv. Gobinda C. Mohanty i/b M/s. Mohanty &
Associates for Defendant Nos. 5 and 6.
Mr. Vishwajit P. Sawant, Senior Advocate a/w Adv. Raju Yamgar & Adv.
Yunus Vakharia i/b Adv. Raju Yamgar for Defendant No.7.
CORAM: FIRDOSH P. POONIWALLA, J.
RESERVED ON : OCTOBER 08, 2025
PRONOUNCED ON: FEBRUARY 23, 2026
JUDGEMENT:
–
1. This Interim Application has been filed by original Defendant
Nos. 1, 3 and 4 seeking rejection of the Plaint under Order VII Rule 11 of the
Code of Civil Procedure 1908 (the ‘CPC‘) on the ground that it is barred by
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law as no leave under Clause XII of the Letters Patent of this Court has been
obtained by the Plaintiff.
2. The present Suit has been filed seeking the following final
reliefs :
“(a) that this Hon’ble Court be pleased to declare that the
property described in Exhibit “C” are properties left behind
by the deceased father and the Plaintiff has 1/7th share in
the same.
(b) that this Hon’ble Court be please to declare that the
Plaintiff is entitled to 1/7th share in the property described
in Exhibit “C” and further prays that this Hon’ble Court be
pleased to pass a decree of partition, partitioning the suit
properties by metes and bounds alongwith agumentations
and be pleased to handover to the Plaintiff, her share in the
suit properties described in Exhibit “C”;
(c) that this Hon’ble Court be pleased to declare that the
agreements entered into by Defendants no. 1 to 4 with
Defendant no. 7 in respect of the land at Dindoshi and
various agreements executed by Defendant Nos. 1 to 4 and
7 with the flat purchasers are not binding on the Plaintiff;
(c)(i) That this Hon’ble Court be pleased to declare that the
Agreement dated 30.12.2006 (Exh. “R”) and Agreement
dated 06.01.2010 (Exh. “S”) executed by the Defendant
no.1 to 4 in favor or Defendant no.7 are illegal, unlawful
and bad in law and the same is not binding upon the
plaintiff.
(c)(ii) That this Hon’ble Court be pleased to direct the
defendant no.1to 4 to deposit entire amount of sale
proceeds of the suit properties to the extent of 1/7th share
of the plaintiff in this Hon’ble Court.
(c)(iii)That this Hon’ble Court be pleased to declare that all
other agreements and transaction entered into by
Defendant no.1 to 4 with Defendant no.7 or any other
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sr.1-ia(l)-937-2025.docthe plaintiff are illegal, unlawful, bad in law and not
binding upon the plaintiff ”
3. The properties described in Exhibit ‘C’ are as under:
“LIST OF ANCESTRAL MOVABLE AND IMMOVABLE
PROPERTIES HELD BY THE DECEASED FATHER SHRI.
DAMODAR (DAMJIBHAI) RAGHAVJI TANK AS THE KARTA
OF THE HUF
1. Old S.Nos. 34/1, 31/1, 39/7, 29/2 and 39/4 now
bearing New City Survey Nos. 104-A, 104-C, 104-D,
104-E, 104-F, 104-G, 104-H, 104-I and 104-J,
admeasuring 68,373.20 sq. mtrs. or thereabouts and
situated at Village Dindoshi, Taluka Borivli, Malad,
Mumbai.
2) Agricultural land in District Vardha, Nagpur,
Maharashtra
3. Landed property and a living house at S.No. 123.
Village Talaja, District Bhavtagar, Gujarat.
4. 2 flats in Neelganga CHS, Bandra, Mumbai
5. Savings a/c and fixed deposits at Bank of Baroda,
Bandra Branch
6. Gold ornaments in the locker at Bank of Baroda,
Bandra Branch.
7. Cash in savings a/c no. 4900 of Bank of Saurashtra
situated at Talaja.
8. Cash in saving a/c no. 7626 in Bank of India situated
at Talaja.”
SUBMISSIONS OF THE APPLICANTS (ORIGINAL DEFENDANT NOS. 1, 3
AND 4)
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4. Mr. Mayur Khandeparkar, the learned counsel appearing on
behalf of the Applicants, referred to Exhibit ‘C’ to the Plaint and stated that it
included immovable properties situated outside the original jurisdiction of
this Court. Mr. Khandeparkar submitted that the prayers and the averments
in the Plaint show that the present Suit is a Suit for partition of immovable
properties and therefore is a Suit for land and immovable properties, some of
which are situated outside the original jurisdiction of this Court. Therefore,
the Suit could have been entertained only by obtaining leave under Clause
XII of the Letters Patent of this Court. Mr. Khandeparkar submitted that
since the Plaintiff had not obtained leave under Clause XII of the Letters
Patent of this Court, the present Suit is barred by law and therefore should be
rejected under Order VII Rule 11 of the CPC.
5. In support of his submission that a Suit for partition of
immovable properties is a Suit for land and immovable properties, Mr.
Khandeparkar referred to the Judgements of this Court in Shiv Bhagwan
Moti Ram Saraoji Vs. Onkarmal Ishar Dass and ors. 1951 SCC Online Bom
122 and Vishram Parbat H.U.F. Vs. M/s. Shruti Builders and Others 1999
SCC Online Bom 434.
6. Mr. Khandeparkar also submitted that the said leave has to be
obtained before the institution of the Suit and cannot be obtained after the
Suit has been instituted. In this context, Mr. Khandeparkar relied upon a
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Judgement of this Court in Quadricon Pvt. Ltd. Vs. Shri Bajrang Alloys Ltd.
2008 (3) Mh.L.J. 407.
7. Further in support of the submission as to what is a Suit for land
Mr. Khandeparkar also relied upon a Judgement of the Hon’ble Supreme
Court in Adcon Electronics Pvt. Ltd. Vs. Daulat and Ors. (2001) 7 SCC 698 .
SUBMISSIONS OF DEFENDANT NO. 7 SUPPORTING THE APPLICANTS
(ORIGINAL DEFENDANT NOS. 1, 3 AND 4)
8. Mr. Vishwajeet Sawant, the learned Senior Counsel appearing on
behalf of Defendant No.7, made submissions in support of the Interim
Application. Mr. Sawant submitted that the present Suit is a Suit for
possession of land and immovable properties and therefore is a Suit for land
and immovable properties under Clause XII of the Letters Patent. In support
of his submission, Mr. Sawant relied upon a Judgement of the Hon’ble
Supreme Court in Sumer Builders Pvt. Ltd Vs. Narendra Gorani (2016) 2 SCC
582.
9. Mr. Sawant further submitted that, in the present case, a perusal
of Exhibit ‘C’ shows that a part of the land and immovable properties are
situated outside the original jurisdiction of this Court and a part of the land
and immovable properties are situated within the jurisdiction of this Court.
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Mr. Sawant submitted that leave under Clause XII of the Letters Patent of
this Court is required if part of the land and immovable properties are
situated outside the original jurisdiction of this Court, even if all the
Defendants reside within the jurisdiction of this Court. In support of this
submission, Mr. Sawant relied upon the Judgement of the Calcutta High
Court in Benoy Shankar Dhandani Vs. Choteylal Dhandania & Ors. AIR (39)
1952 Calcutta 343.
10. Further, Mr. Sawant submitted that it is well settled in law that a
Suit for partial partition is not maintainable. Mr. Sawant submitted that
therefore the present Suit cannot proceed only in respect of the properties
which are within the original jurisdiction of this Court and therefore the Suit
is required to be dismissed. In support of this submission, Mr. Sawant relied
upon the judgement of the Hon’ble Supreme Court in Kenchegowda Vs.
Siddegowda Alias Motegowda (1994) SCC 294.
11. Mr. Sawant also relied upon the Judgement of this Court in
Quadricon Pvt. Ltd. (supra) and submitted that the present Suit has to be
dismissed.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF
12. Mr. Rohan Cama, the learned counsel appearing on behalf of the
Plaintiff, opposed the present Interim Application.
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13. Mr. Cama first submitted that, even if the present Suit is a Suit
for land and leave was required for the immovable properties situated outside
the original jurisdiction of this Court, the Plaint ought not to be rejected
under Order VII Rule 11 of the CPC. Mr. Cama submitted that the Hon’ble
Supreme Court has repeatedly held that a Plaint can be rejected under Order
VII Rule 11 only as a whole and not in part. It is impermissible to reject
certain prayers or reliefs in a Plaint. In order to suffer rejection of a Plaint it
must be shown that the entire body of reliefs sought in the Plaint are barred
and fall foul under Order VII Rule 11 and therefore the Plaint as a whole is to
be rejected.
14. Mr. Cama submitted that even if one of the reliefs is sustainable
or maintainable in this Court, then, notwithstanding whatever be the case as
far as the others relief is concerned, the Plaint cannot be rejected under
Order VII Rule 11, as held by the Hon’ble Supreme Court, and this Court
ought not to even to opine on whether any of the other reliefs would fall
outside the jurisdiction of this Court. In support of these submissions, Mr.
Cama relied upon the following Judgements :
i) Central Bank of India Vs. Smt. Prabha Jain and Ors. (Civil
Appeal No. 1876/2016).
ii) Vinod Infra Developers Ltd. Vs. Mahaveer Lunia & Ors.
2025 SCC Online Supreme Court 1208.
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iii) Geetha D/o. Late Krishna & Ors. Vs. Nanjundaswamy and
Ors. 2023 SCC Online SC 1407.
iv) Sejal Glass Ltd Vs. Navilan Merchants Pvt. Ltd. (2018) 11
SCC 780.
15. Mr. Cama submitted that, in the present case, it is ex facie
untenable for the Applicants to contend that all the reliefs fall outside the
jurisdiction of this Court. In this context, Mr. Cama submitted that it is clear
from Exhibit ‘C’ that there are various assets which very much fall within the
territorial jurisdiction of this Court. If this be the case, so far as the partition
Suit relates to these immovable properties, it is evidently within the
jurisdiction of this Court. A partition Suit for these properties would not lie
anywhere but within the jurisdiction of this Court. Mr. Cama submitted that,
therefore, at the very minimum, assuming whilst denying, that everything
that is contended by the Applicants is correct, the Suit so far as it relates to
partition of the properties evidently falling within the jurisdiction of this
Court could only lie in this Court.
16. Mr. Cama further submitted that, even otherwise, several of the
reliefs, and in particular prayer clauses (c), (c)(i), (c)(ii) and (c)(iii) all pertain
only to the property at Malad. This property is very much within the
territorial jurisdiction of this Court. The reliefs sought in respect of this
property, which are evidently reliefs independent of all the other assets set
out in Exhibit ‘C’ to the Plaint, can only be sought in this Court. There is no
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other Court which would have jurisdiction in respect of the Malad property
and the steps taken by the Defendants in respect thereof. Thus evidently
prayer clauses (c), (c)(i), (c)(ii) and (c)(iii) fall within the jurisdiction of this
Court.
17. Mr. Cama submitted that thus it is very clear that, at the very
minimum, certain reliefs would eminently fall within the jurisdiction of this
Court and therefore there is no question of the Plaint being rejected in part.
18. Mr. Cama next submitted that the present Suit is not a Suit for
land. In this context, he submitted that a Suit seeking a relief of partition of
various properties is not per se a Suit for land. The aspect of receiving a share
in properties described in Exhibit ‘C’ to the Plaint does not convert, what is
essentially and substantially a Suit for partition against the Defendants, who
are all based within the jurisdiction of this Court, into a Suit for land.
19. Mr. Cama further submitted that the reliefs sought in the present
Suit are in respect of a declaration qua the Defendants in respect of the
Plaintiff’s 1/7th share in the estate of her deceased father and for partition and
distribution of her 1/7th share to her. The aspect pertaining to the land is only
prayed for in respect of her being entitled to a distribution of her 1/7 th share,
which may either be in land, i.e. in specie, or it may even be in monetary
terms, both of which would have nothing to do with seeking possession of the
land.
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20. Mr. Cama further submitted that this assessment, of whether to
decree the 1/7th share in terms of land or money, is an aspect that cannot be
definitively determined today. If, at the hearing of the Suit, this Court finds
that the Plaintiff is entitled to 1/7 th share only in monetary terms, no question
of possession arises at all. The plaint cannot therefore, at this stage, be
treated as a Suit for possession and therefore a Suit for land.
21. Mr. Cama next submitted that, as regards title, there is no
dispute at all. It is the Plaintiff’s case in the amendment that the
Dindoshi/Malad property devolved by survivorship on the father Damodar as
it was a joint tenancy with his father Raghavji. Mr. Cama submitted that this
in fact is the case of Defendants as evident from paragraph 5 of the Order
dated 7th December, 2016 passed by this Court in Notice of Motion No. 476 of
2012 holding so. Further, Mr. Cama submitted that the fact that it is property
forming part of Damodar Tank HUF is also basis the Agreement executed by
Defendant Nos. 1 to 4 themselves. Thus, in the present Suit, there is no
question of title to be determined.
22. Mr. Cama submitted that it is well settled, as laid down by the
Hon’ble Supreme Court in the Judgement of Sumer Builders (supra) and in
Adcon Electronics Pvt. Ltd. (supra) that what is to be tested is if the Suit is in
substance, and substantially, a Suit for land, which the present Suit is not.
23. Mr. Cama next submitted that two learned Single Judges of this
Court in Orders passed in Jagneesh Malhotra and Anr. Vs. Kavita Malani and
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Anr. (In Leave Petition No. 328 of 2018 in Suit (L) No. 1426 of 2018) and in
Dipika Hitendra Shah Vs. Jitendra Jayantilal Shah (In Leave Petition (L) No.
11286 of 2024 in Suit (L) No. 11278 of 2024) have held that the a Suit for
partition is not a Suit for land.
24. Mr. Cama submitted that the reliance placed by the Applicants
upon the Judgement of this Court in Shiv Bhagwan (supra) is inapposite. Mr.
Cama submitted that the said Judgement turns on the facts of its own case
where all the immovable properties were outside the Court’s jurisdiction on
the date of the filing of the Suit, and in any event does not alter the position
that if a Suit is substantially one for land then it could be said to be a Suit for
land. Mr. Cama submitted that, in the present case, the prayers reflect that
the present Suit is not so, and therefore the present Suit cannot be called a
Suit for land. Further, Mr. Cama submitted that observations of this Court in
paragraphs 12 and 82 of Shiv Bhagwan (supra) that a partition Suit is a Suit
for land is purely a passing observation, without assessing the legal tests for
determining if a Suit is one for land, i.e., if substantially and in substance, the
Suit is for adjudication of title and possession. Mr. Cama submitted that
without prejudice to the above, in any event, the judgement in Shiv Bhagwan
(surpa) has no binding force as the Hon’ble Supreme Court in Adcon
Electronics (supra) has now laid down the test for determining if a Suit is a
Suit for land, namely :
i) It is in substance a Suit for title and/or possession of land.
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ii) When viewed as a whole, is the purpose of the Suit to
obtain a decision on title to the land or is the object different and
considerations of title arise indirectly or incidentally.
iii) If it is the latter, i.e. if the title arises incidentally, but the
object of the Suit is not determination of title, then the Suit is not
a Suit for land.
25. Mr. Cama submitted that if it is not a Suit for land, then there is
no infirmity with the present Suit being filed in this Court, including for the
two properties which are otherwise outside the territorial jurisdiction of this
Court, because no question of leave arises as all the Defendants are within the
jurisdiction of this Court.
26. Mr. Cama’s next submission was that, in the present case, no
leave under Clause XII of the Letters Patent is required. Mr. Cama submitted
that it is clear from the first part of Clause XII that if a Suit is a Suit for land
then it has to be instituted where the land is situated. If, for the reasons given
by him, in the present case, it is not a Suit for land, then there is no question
of that portion of Clause XII applying.
27. Mr. Cama further submitted that the second part of Clause XII
provides that if a part of the cause of action arises within the jurisdiction of
this Court then leave may be necessitated for maintaining the Suit in this
Court. However, independent of anything to do with the cause of action, if all
the Defendants reside within the territorial jurisdiction of this Court, then
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under the third part of Clause XII there is no question of having recourse to
that portion of Clause XII which deals with leave for a part of the cause of
action being outside the jurisdiction of this Court. The third part of Clause
XII is an independent provision which allows a Suit to be filed within the
jurisdiction of this Court, regardless of whether a part or a whole of the cause
of action is here, purely and simply if all the Defendants are residing or
working for gain within the territorial jurisdiction.
28. Mr. Cama submitted that, in the present case, admittedly all the
Defendants are within the territorial jurisdiction of this Court, and, hence, if
the present Suit is not a Suit for land, then there is no question of requiring to
obtain leave under Clause XII and the Suit is maintainable purely on the
ground that all the Defendants are within the territorial jurisdiction of this
Court, even for the properties situated outside.
29. Mr. Cama submitted that there is no consequence of leave not
being obtained qua maintaining the present Suit in this Court. In this
context, Mr. Cama submitted that, without prejudice to his other
submissions, the only consequence of leave having not been obtained would
be that this Court may come to the conclusion at the final hearing of the Suit
that no reliefs be granted in respect of those properties following outside its
territorial jurisdiction.
30. Mr. Cama submitted that the consequence of leave not being
obtained for the part of cause of action following outside the jurisdiction is
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only that the Court would not have jurisdiction over that part of the cause of
action. This does not, however, make the plaint infirm or liable to be rejected
under Order VII Rule 11, of the CPC so far as it relates to that portion of the
cause of action which is very much within the territorial jurisdiction of this
Court. Mr. Cama submitted that the only consequence of leave not being
obtained is that the portion which is outside the jurisdiction of this Court
would not be opined on or a decree would not be passed in respect thereof at
the final hearing of the Suit. However, so far as the portion that is within
jurisdiction is concerned, the present Suit is very much maintainable. Mr.
Cama submitted that, for all these reasons, the present Interim Application
filed under Order VII Rule 11 of the CPC is liable to be rejected.
SUBMISSIONS OF DEFENDANT NOS. 5 AND 6
31. Mr. Anish Karande, appearing on behalf of Defendant Nos. 5 and
6, supported the arguments of the Plaintiff, as advanced by Mr. Cama.
REJOINDER ON BEHALF OF DEFENDANT NOS. 1, 3 AND 4
(THE APPLICANTS)
32. Mr. Anturkar, the learned Senior Advocate appearing on behalf
of the Applicants, made submissions in rejoinder. Mr. Anturkar submitted
that it is the case of the Plaintiff that, even if one relief is maintainable in this
Court, then regardless of the fate of the other reliefs, the plaint cannot be
rejected under Order VII Rule 11 of the CPC.
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33. In this context, Mr. Anturkar submitted that, in the present case,
not even a single relief is sustainable or maintainable in this Court as regards
properties outside its jurisdiction in the absence of leave under Clause XII of
the Letters Patent.
34. Mr. Anturkar submitted that reliefs relating to the remaining
properties also cannot be granted because such reliefs would amount to
entertaining a Suit for partial partition, which is not maintainable. Mr.
Anturkar submitted that, in these circumstances, even a single relief cannot
be sustained or maintained in this Court.
35. Mr. Anturkar submitted that were it not for Clause XII of the
Letters Patent of this Court and Order L (50) of the CPC, such a Suit, like the
present Suit, could have been instituted under Section 17(1) of the CPC even
in this Court. However, due to the provisions of Clause XII of the Letters
Patent, where property is wholly or partly situated outside the jurisdiction of
this Court, leave under Clause XII must be obtained to entertain such a Suit.
If no such leave is obtained before the Suit was numbered and registered, the
maintainability of the Suit is vitiated. No such leave is necessary if the Suit is
filed in respect of the land at Talaja, Gujarat (in the Court at Talaja, Gujarat)
or in respect of land in Wardha (in the Court at Wardha), where Section 17
applies outright and Clause XII of the Letters Patent is not applicable to those
Courts. Mr. Anturkar further submitted that if the Plaintiff seeks to continue
the Suit only concerning properties at Malad/Dindoshi and Bandra, then a
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Suit for partition, amounting to a partial partition of the properties, is not
maintainable.
36. Mr. Anturkar submitted that, as far as the Judgement of this
Court in Shiv Bhagwan (supra) is concerned, it remains good law for the
proposition that a Suit for partition of land or immovable properties is a Suit
for land or immovable property. However, on the second point, regarding
whether a Suit for partition can be entertained in respect of some properties
alone, like the Vikhroli property in the case of Shiv Bhagwan (surpa), the
position has changed in view of the principles laid down by the Hon’ble
Supreme Court that a Suit for partial partition is not maintainable. In this
context, Mr. Anturkar referred to the Judgements of the Hon’ble Supreme
Court in R. Mahalakshmi Vs. A.V. Anantharaman and Ors. (2009) 9 SCC 52
and Kinchegoda (surpa) which hold that a Suit for partial partition is not
maintainable. Mr. Anthurkar submitted that, if the Plaintiff contends that the
Suit should be limited at least to immovable properties at Malad/Dindoshi
and Bandra, then, on the alternative ground that the Suit for partial partition
is not maintainable, the Plaint is liable to be rejected.
37. Mr. Anturkar next submitted that the contention of the Plaintiff
that the Suit is not a Suit for land is totally wrong. The Judgements of this
Court in Shiv Bhagwan (supra) and Vishram Parbat (supra) have clearly held
that a Suit for partition is a Suit for land.
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38. Further Mr. Anturkar submitted that it is wrongly portrayed by
the Plaintiff that she does not seek possession of the land. Mr. Anturkar
submitted that this is factually incorrect because prayer Clause (b) expressly
seeks an order to hand over to the Plaintiff her share in the Suit property
described in Exhibit ‘C’ of the Plaint. Further, even in paragraph 6 of the
Plaint, the Plaintiff has stated that the present Suit is filed to seek a partition
and separate possession of the properties left behind by her deceased father.
39. Mr. Anturkar further submitted that there is no substance in the
argument of the Plaintiff that, at this stage, the Suit cannot be treated as a
Suit for possession. Mr. Anturkar submitted that the prayer for handing over
of the property demonstrates that the present Suit is a Suit for possession and
thus a Suit for land even at this stage.
40. Mr. Anturkar submitted that in Sumer Builders (supra) the
Court affirmed that a suit involving a controversy over possession of land is a
Suit for land. Mr. Anturkar reiterated that the prayer seeking to handing over
possession establishes that the present Suit concerns possession and the
controversy is for possession of the land, making it a Suit for land.
41. As far as the Orders in Jagneesh Malhotra (supra) and Deepika
Hitindra Shah (supra) are concerned, Mr. Anturkar submitted that the same
do not refer to the binding precedent of the Division Bench of this Court in
Shiva Bhagwan (supra) and hence are per incuriam.
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42. In conclusion, Mr. Anturkar submitted that, in the present case,
not a single relief is sustainable or maintainable in this Court as regards
properties outside its jurisdiction in the absence of leave under Clause XII of
the Letters Patent of this Court. Further, reliefs relating to the properties at
Malad/Dindoshi and Bandra ought not to be granted because the same
would amount to partial partition, which has been held by the Hon’ble
Supreme Court as being not permissible. Mr. Anturkar submitted that it is
clear that the present Plaint as a whole is liable to be rejected under Order
VII Rule 11 of the CPC for lack of jurisdiction and maintainability and want of
leave under Clause XII of the Letters Patent.
SUR-REJOINDER OF THE PLAINTIFF
43. In Sur-Rejoinder, Mr. Cama submitted that it is not pleaded by
the contesting Defendants that a claim for partial partition is not
maintainable.
44. Further, Mr. Cama submitted that, apart from partition, the Suit
involves a challenge to deal with the Dindoshi property without the consent
of the Plaintiff. Therefore prayers (c), (c)(i), (c)(ii) and (c)(iii) of the Plaint
would survive.
45. As far as the Judgements in R. Mahalaxmi (supra) and
Kenchegowda (supra) are concerned, Mr. Cama submitted that, in these
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matters, the Plaintiff did not seek a full partition, whilst, in the present case,
the Plaintiff was seeking a full partition.
46. Mr. Cama submitted that, in the light of the submissions made
by the Plaintiff, the application under Order VII Rule 11 ought to be rejected.
FINDINGS AND ANALYSIS
47. In the light of the above submissions of the parties, in my view,
the following questions arise for the consideration of this Court.
A) Whether the present Suit is a Suit for land and immovable
properties under Clause XII of the Letters Patent of this Court ?
B) Whether leave under Clause XII of the Letters Patent of
this Court is required ?
C) If the answers to questions (A) and (B) are in the
affirmative, can the Plaint be rejected under Order VII Rule 11 of
the CPC.
ON QUESTION ‘A’- WHETHER THE PRESENT SUIT IS A SUIT FOR LAND
UNDER CLAUSE XII OF THE LETTERS PATENT OF THIS COURT ?
48. Before dealing with this issue, it would be appropriate to refer to
Clause XII of the Letters Patent of this Court. Clause XII of the Letters Patent
of this Court reads as under :
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“12. Original jurisdiction as to suits
And We do further ordain that the said High Court of
Judicature at Bombay, in the exercise of its ordinary
original civil jurisdiction, shall be empowered to receive,
try, and determine suits of every description, if, in the case
of suits for land or other immovable property such land or
property shall be situated, or in all other cases if the cause
of action shall have arisen, either wholly, or, in case the
leave of the Court shall have been first obtained, in part,
within the local limits of the ordinary original jurisdiction
of the said High Court or if the defendant at the time of the
commencement of the suit shall dwell or carry on business,
or personally work for gain, within such limits; except that
the said High Court shall not have such original jurisdiction
in cases falling within the jurisdiction of the Small Cause
Court at Bombay, or the Bombay City Civil Court.”
49. In Shiv Bhagwan (supra), a Division Bench of this Court held
that a Suit for partition is a Suit for land. Paragraph 12 of the Judgement of
Chief Justice Chagla in Shiv Bhagwan reads as under :
“12.The first and the most important question that we have
to decide is whether this Court has jurisdiction to try a suit
for partition in which the properties to be partitioned are
both immovable and movable properties. It is well settled
that a suit for partition of immovable properties is a suit
for land. And under Cl. 12 of the Letters Patent, the Court
would have jurisdiction in the case of suits for land or
other immovable property if such land or property is
situated within jurisdiction. The construction of Cl. 12 has
been responsible for more judicial decisions than perhaps
any other clause in the Letters Patent, and many learned
Judges have pointed out the various possible constructions
to which the language of Cl. 12 lends itself.”
(Emphasis supplied)
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Paragraph 82 of the Judgement of Justice Bhagwati in Shiv Bhagwan(supra)
reads as under :
“82. As already observed, a suit for partition of
immovable properties is a suit for land, and the suit in so
far as it seeks partition of the immovable properties which
are comprised in the particulars exh. E to the plaint would
therefore be a suit for land. These lands are situated at
Karachi, Vikhroli, Amritsar and other places, and even
Vikhroli was outside jurisdiction at the commencement of
the suit. It could not therefore be urged that any of the
suit lands was within jurisdiction at the commencement of
the suit. Bombay Act XVII of 1945 had extended the limits
of the City of Bombay by including therein some portions
of the Bombay Suburban District.”
(Emphasis supplied)
50. Further in Vishram Parbat, a Single Judge of this Court has
followed Shiv Bhagwan (supra) and held that a Suit for partition is a Suit for
land. Further, this Court also held that a suit for recovery of possession is also
a Suit for land. Paragraphs 20 to 25 of the said Judgement are relevant and
read as under :
“20. It is thus clear from all the observations that the
earlier concepts of distinguishing causes of action
based on an action in rem or in personam is no longer
determinative or effective, as in modern times actions
in rem are restricted to admiralty jurisdiction and
status. Therefore, the test is as to what is the relief
sought. Do the reliefs require determination of title to
the land? Do they seek recovery of possession of the
land or partition and if so, whether these reliefs are
incidental or substantial whilst deciding the issue in
question.
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21. Useful reference may also be made to the
judgment of the Division Bench of this Court in Shiv
Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass
(supra) more
specifically to para 6 of the judgment wherein Chagla,
C.J., observed as under:
“It is well settled that a suit for partition of
immovable properties is a suit for land. And under
Cl. 12 of the Letters Patent, the Court would have
jurisdiction in the case of suits for land or other
immovable property if such land or property is
situated within jurisdiction. The construction of
Cl. 12 has been responsible for more judicial
decisions than perhaps any other clause in the
Letters Patent, and many learned Judges have
pointed out the various possible constructions to
which the language of Cl. 12 lends itself.”
22. In para 22 of the same judgment Bhagwati, J., as
he then was observed as under:
“A suit for partition of immovable property is a
suit for land and this Court had therefore no
jurisdiction to entertain the suit for such partition
because no part of the land was situated within
jurisdiction. The case would, however, be
different in regard to the movable properties, and
this Court would have jurisdiction to entertain
the suit for partition of movable properties if by
reason of the suits or location of some of the
movables within jurisdiction it could be said that
a part of the cause of action had arisen within
jurisdiction. In that event with leave under Cl.12
of the Letters Patent being granted this Court
would have jurisdiction to entertain the suit for
partition of all the movable properties which
were the subject-matter of the suit.”
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23. I refrain from adding for the sake of adding. To my
mind the observations culled out, by themselves,
should be the beacon for understanding Clause XII.
24. Applying the aforesaid tests to the reliefs as sought
for in the suit, can it be said that the suit is basically
for enforcing the agreement as sought in prayer Clause
(c) and all other reliefs are merely consequential to
relief in prayer Clause (c). The plaintiff is seeking a
declaration for cancellation of documents, namely
prayer Clauses (a) and (b) against defendant No. 1
based on his title to the land along with defendants
No. 2 and 3. Plaintiff will, therefore, have to establish
his title to the land against defendant No. 1 to get the
reliefs in prayer Clauses (a) and (b). These are not
incidental questions to be decided or reliefs to be
granted to hold that the action is in personam. To my
mind if the tests applied by the learned Judges of the
Federal Court as also of this Court are applied, the suit
involves the following:
(a) determination of the Plaintiffs title to the land as
without such determination the reliefs as prayed for in
prayer Clauses (a) and (b) cannot be granted;
(b) partition of land or sub division of sub plots as
prayed for in prayer Clause (c);
(c)recovery of possession as has been prayed for in
prayer Clause (d).
25. Therefore, to my mind the suit is a suit
substantially for land and as the land situate outside
the jurisdiction of this Court, this Court has no
jurisdiction to hear and decide the present suit. In
the light of that, I answer the issue of jurisdiction in
favour of defendant No. 1 and accordingly,direct the
plaint to be returned to the plaintiff for presentation
before the proper Court.”
51. In Adcon Electronics (supra), the Hon’ble Supreme Court has
held that a Suit for land is a Suit in which the relief claimed relates to title to
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or delivery of possession of land or immovable properties. Paragraph 15 of
the said Judgement reads as under :
“15. From the above discussion it follows that a “suit for
land” is a suit in which the relief claimed relates to title to
or delivery of possession of land or immovable property.
Whether a suit is a “suit for land” or not has to be
determined on the averments in the plaint with reference
to the reliefs claimed therein; where the relief relates to
adjudication of title to land or immovable property or
delivery of possession of the land or immovable property, it
will be a “suit for land”. We are in respectful agreement
with the view expressed by Mahajan, J. in Moolji Jaitha
cases”.
(Emphasis supplied)
52. Further in Sumer Builders (supra), the Hon’ble Supreme Court
has held that a suit for possession would be a Suit for land. Paragraph 32 of
the said Judgement reads as under :
“32. The seminal issue is whether on the factual score
which has been exposited, the application filed under
Section 9 of the 1996 Act before the High Court of Bombay
can be regarded as a money claim. On a studied scrutiny of
the agreement and the MoU it is clear as day that the
development agreement indubitably had created certain
interests in the land in favour of the appellant. The
assertions made in the application along with the relief
clause when read in entirety and appreciated in a holistic
manner, it becomes luminescent that the core dispute
pertains to possession of the land, for the appellant claims
to be in exclusive possession and the respondent, per
contra, has asseverated that it had taken over possession. It
can irrefragably be stated that any order passed under
Section 9 of the 1996 Act will have the impact on the land.
It is difficult to accede to the submission that it will not
conceptually fall within the category of “suit for land” as
engrafted under Clause XII of the Letters Patent. It is clearly
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application preferred under Section 9 of the 1996 Act.
Thus, there has to be determination as regards possession
and impliedly issue of direction for recovery of possession.
Hence, the conclusion arrived at by the Division Bench on
the basis of the scrutiny of documents that the dispute is
embedded with regard to the possession of the land
because the fundamental claim pertains to certain
constructed space on the land and, therefore, it would
conceptually fall within the conception of “suit for land”
appearing in Clause XII of the Letters Patent is
unexceptionable. Prayer (a) quoted above seeks restraint by
a temporary order or injunction from entering upon the
property. It is difficult to accept the submission that it is a
money claim and, therefore, the Bombay High Court would
also have the territorial jurisdiction and accordingly we
unhesitatingly repel the same.”
(Emphasis supplied)
53. In the present case prayer (b) of the Plaint seeks a decree of
partition for partitioning the Suit properties which are described in Exhibit
‘C’ and which include land, living house and flats. Since, the present Suit
seeks a partition of land and immovable properties, it is a Suit for land.
54. Further, in prayer (b) the Plaint, the Plaintiff seeks that her
share in the Suit property described in Exhibit ‘C’ be handed over to her.
Therefore, the Plaintiff seeks possession of a part of the land and immovable
properties described in Exhibit ‘C’ to the Plaint. For this reason also, the
present Suit is a Suit for land and immovable properties.
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55. As far as the Orders in Jagneesh Malhotra and Dipika Hitendra
Shah referred to by the Plaintiff are concerned, they are only orders granting
leave under Clause XII of this Letters Patent of this Court and therefore have
no value as precedent. In any case, in Shiv Bhagwan (supra), a Division
Bench of this Court has held that a Suit for partition is a Suit for land.
56. In the light of the aforesaid discussion, in my view, the present
suit is a Suit for land under Clause XII of the Letters Patent of this Court and
therefore question (A) is answered in the affirmative.
ON QUESTION ‘B’- WHETHER LEAVE UNDER CLAUSE XII OF THE
LETTERS PATENT IS REQUIRED ?
57. The Courts have taken a consistent view that if, in a Suit, a part
of land and immovable property are situated outside the jurisdiction of this
Court, and a part of the land and immovable property are situated within the
jurisdiction, then this Court can entertain that Suit by granting leave under
Clause XII of the Letters Patent of this Court.
58. This view has been taken by the Calcutta High Court in Benoy
Shankar Dhandani (supra) wherein it is held that leave under Clause XII of
the Letters Patent of the High Court is required if part of the land is situated
outside the jurisdiction of the Court and part of the land is situated within the
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jurisdiction of the Court. Paragraph 20 of the said Judgement is relevant in
this regard and reads as under :
(20) Mr. Khaitan next contends that no leave was
necessary as the defts. were residing within the
jurisdiction. He urges that in a suit for land, if a portion
of the land is situate, & the defts., re-side, within
jurisdiction, it is not necessary to obtain leave of Court for
the institution of the suit. He referred to the terms of Cl. 12
in support of his submission. Whatever may be the
grammatical construction of Cl. 12, it is now well
established that in a suit for land, if the entire land is not
situate within jurisdiction, it is necessary that leave of the
Court should be obtained before the Institution of the suit
in order that the suit may be filed in this Court. It is
unnecessary to refer to the authorities which are
numerous. I will only set out a passage from the judgment
of Rankin C. J. in ‘Manindra Chandra v. Lal Mohun’, 56 Cal
940. The passage is as follows:
“Clause XII is a clause which, if it was to be construed
for the first time according to its grammatical
construction & in strict accordance with its wording,
might perhaps have to be given a somewhat different
meaning to that which is well settled now in all the
High Courts of India. The effect of the construction
upon which all the High Courts are agreed is that as
regards suits for land, the H.C. can take cognizance, if
the land is situate wholly within the local limits or,
where the land is situate in part only within such
limits, if leave has been first obtained; and that as
regards suits, other then those for land, the High
Court has jurisdiction, if the cause of action has
arisen wholly within the limits or where the cause of
action has arisen in part only within the limits, if the
leave of the Court shall have been first obtained or if
the deft. dwells or carries on business or personally
works for gain within these limits.”
(Emphasis supplied)
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59. Since, as held by me hereinabove, the present Suit is a Suit for
land and immovable property, and admittedly part of the land and
immovable property is situated outside the ordinary original jurisdiction of
this Court, leave under Clause XII of the Letters Patent of this Court would be
required to entertain this Suit.
ON QUESTION ‘C’- IF THE ANSWERS TO QUESTIONS (A) AND (B) ARE
IN THE AFFIRMATIVE CAN THE PLAINT BE REJECTED UNDER ORDER
VII RULE 11 OF THE CPC ?
60. I have already come to the conclusion that the present Suit is a
Suit for land and immovable property, and since part of the land and
immovable property are situated outside the original jurisdiction of this
Court, leave under Clause XII of the Letters Patent of this Court is required.
61. Admittedly, leave is not obtained by the Plaintiff prior to
instituting the present Suit. The Plaintiff cannot now obtain leave. The same
is clear from paragraphs 16 and 17 of the Judgement in Quadricon (supra)
which read as under :
“16. From the above judgments, one thing is clear. As held
in Rampurtab’s case, the leave must be granted at the time
of acceptance of the plaint and cannot be granted
afterwards. This judgment was affirmed by the Division
Bench in Devidatt’s case holding that the leave under
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before the institution of the suit. The judgment in
Noorjahan’s case also inter-alia held that the leave cannot
be granted after the suit has been instituted.
17. Admittedly in the present case, the plaint has not only
been presented but has also been admitted. In view of the
above judgment, leave cannot be granted now at this
stage.”
62. The question that therefore arises is what is the effect of the
Plaintiff not obtaining leave under Clause XII of the Letters Patent of this
Court.
63. As a result of the Plaintiff not obtaining leave under Clause XII
of the Letters Patent of this Court, this Court has no jurisdiction over the
lands and immovable properties situated outside the original jurisdiction of
this Court. The question therefore is whether the present Suit is maintainable
in respect of the other movable and immovable properties referred to in
Exhibit ‘C’ of the Plaint which are within the original jurisdiction of this
Court.
64. In my view, the answer to that question has to be in the negative
as it is well settled in law that a Suit for partial partition is not maintainable.
In other words, a Suit for partition of only some properties is not
maintainable. This has been held by the Hon’ble Supreme Court in
Kenchegowda (supra). Paragraphs 10 and 16 of Kenchegowda (supra) read as
under :
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“10. It is argued on behalf of the appellant that the learned
Single Judge went wrong in converting the suits for
declaration and injunction into one for partition when all
the joint family properties were not made the subject-
matter of the suits nor were all the co-sharers impleaded. It
is well-settled in law that a suit for partial partition is not
maintainable. Merely because the plaintiff came to file an
application under Order 6 Rule 17 CPC it would not mean
it could be allowed and a preliminary decree for partition
be passed. As a matter of fact, the causes of action are
different. Therefore, the High Court went wrong in
holding the larger relief of declaration of title and
injunction even though not available to the plaintiff the
smaller relief for partition could be granted.
16. Therefore, what has been held is that the property had
not been allotted in favour of the first defendant in the
partition. That is very different from holding that the case
of partition had not been accepted by the first appellate
court. This being so, a decree for partition could not have
been passed on a mere application for amendment. In fact,
as rightly urged by the learned counsel for the appellant
that the causes of action are different and the reliefs are
also different. To hold that the relief of declaration and
injunction are larger reliefs and smaller relief for partition
could be granted is incorrect. Even otherwise, a suit for
partial partition in the absence of the inclusion of other
joint family properties and the impleadment of the other
co-sharers was not warranted in law. Thus, we find no
difficulty in allowing these appeals which are accordingly
allowed. The judgment and decree of the trial court as
affirmed by the first appellate court are restored. However,
there shall be no order as to costs.”
(Emphasis supplied)
65. In other words, since, without obtaining leave under Clause XII,
the Suit for lands and immovable properties outside the ordinary jurisdiction
of this Court is not maintainable, and a Suit for other properties is not
maintainable as it would be a Suit for partial partition which is barred by law,
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in my view, the entire Plaint is barred by law and has to be rejected under
66. In the light of the aforesaid conclusion, I am not required to deal
with the submission of Mr. Cama that a Plaint can be rejected under Order
VII Rule 11 of the CPC only as a whole and not in part, nor am I required to
deal with the Judgements cited in support of that proposition by Mr. Cama.
This is because, as held by me hereinabove, I have rejected the Plaint as a
whole and not in part.
67. I am also unable to accept the submission of Mr. Cama that the
only consequence of leave having not been obtained would be that this Court
may come to the conclusion at the final hearing of the Suit that no reliefs can
be granted in respect of those properties falling outside its territorial
jurisdiction. As held by me hereinabove, the filing of the Plaint in the present
Suit without obtaining leave under Clause XII of the Letters Patent of this
Court leads to this Court not having jurisdiction over the lands and
immovable properties situated outside the original jurisdiction of this Court.
Further, as held by me hereinabove, a Suit for partial partition is not
maintainable. Therefore, the Suit in respect of lands, movable and
immovable property situated within the jurisdiction of this Court is not
maintainable and is barred by law. Therefore, the consequence of leave not
having been obtained under Clause XII of the Letters Patent of this Court
would necessarily be that the Plaint would have to be rejected as being barred
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by law under Order VII Rule 11 of the CPC. There is no question of the Suit
proceeding for a final hearing as it is barred by law under Order VII Rule 11 of
the CPC.
68. This leaves me to deal with one more argument addressed by Mr.
Cama. It was the submission of Mr. Cama that several reliefs, and in
particular prayer clauses (c), (c)(i), (c)(ii) and (c)(iii) all pertain only to
property within the territorial jurisdiction of this Court and the reliefs sought
in respect of the said property can only be sought in this Court. There is no
other Court which would have jurisdiction in respect of the said property and
the steps taken by the Defendants in respect thereof. The reliefs sought in
prayers (c), (c)(i), (c)(ii) and (c)(iii) are consequential to the reliefs sought in
prayers (a) and (b) of the Plaint. Prayer (b) of the Plaint specifically seeks a
decree of partition for partitioning the Suit properties as mentioned in
Exhibit ‘C’ which include the property referred to in prayers (c), (c)(i), (c)(ii)
and (c)(iii). Granting of the reliefs sought in these prayers would amount to
granting relief in a Suit for partial partition which, as held by me
hereinabove, is not permissible in law. In these circumstances, I am unable to
accept this argument of Mr. Cama also.
ORDER
a) In the light of the above discussion, and for all the
reasons stated hereinabove, this Interim Application is allowed
in terms of prayer (a) thereof, which reads as under :
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“(a) That this Hon’ble Court be pleased to dismiss/reject
the present Suit Under Order VII Rule 11 of CPC, 1908, as
no leave under Clause XII of Letters Patent after lodging
and before admitting the Plaint of the present Suit, has
been sought by Plaintiff as required by law.”
b) In the facts and circumstances of the case, there will be no order
as to costs.
[FIRDOSH P. POONIWALLA, J.]
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