Court’s decision
The Bombay High Court dismissed a 2012 partition suit under Order VII Rule 11 of the Code of Civil Procedure, holding that the plaint was barred by law for failure to obtain prior leave under Clause XII of the Letters Patent.
Justice Firdosh P. Pooniwalla ruled that a suit for partition of immovable property is a “suit for land” within the meaning of Clause XII. Since part of the properties were situated outside the Court’s original jurisdiction and no leave had been obtained before institution, the suit was not maintainable. The plaint was rejected in entirety.
Facts
The plaintiff sought declaration of 1/7th share in ancestral movable and immovable properties allegedly left by her deceased father, described in Exhibit “C” to the plaint. The properties included land at Dindoshi (Mumbai), agricultural land in Wardha (Maharashtra), property at Talaja (Gujarat), flats in Bandra, and certain movable assets.
The suit prayed for partition by metes and bounds, delivery of the plaintiff’s share, and declarations that agreements executed by certain defendants in respect of the Dindoshi property were illegal and not binding on her.
The defendants filed an interim application under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that no leave under Clause XII of the Letters Patent had been obtained, despite part of the immovable properties being situated outside the Court’s jurisdiction.
Issues
The Court framed three key questions:
- Whether the suit was a “suit for land” under Clause XII of the Letters Patent.
- Whether leave under Clause XII was mandatory in the facts.
- If so, whether the plaint was liable to rejection under Order VII Rule 11 CPC.
Applicants’ arguments
The defendants contended that a partition suit involving immovable properties is unequivocally a suit for land. Since some properties were situated outside the original jurisdiction of the Bombay High Court, leave under Clause XII was mandatory before institution.
They argued that such leave is a condition precedent and cannot be granted post-institution. In absence of prior leave, the suit was barred by law.
Further, they submitted that even if the suit were confined to properties within jurisdiction, it would amount to partial partition, which is impermissible in law. Therefore, the plaint was liable to rejection in entirety.
Plaintiff’s arguments
The plaintiff argued that even if leave were required for certain properties, the plaint could not be rejected in part. Relying on Supreme Court precedents, it was contended that rejection under Order VII Rule 11 must be of the entire plaint and not selective reliefs.
It was also argued that the suit was not substantially one for land, but for declaration of share and distribution, and that delivery could be monetary.
Further, the plaintiff contended that all defendants resided within jurisdiction, attracting the third limb of Clause XII, thereby negating the need for leave.
Analysis of the law
The Court relied on the Division Bench judgment in Shiv Bhagwan Moti Ram Saraoji, which held that a suit for partition of immovable property is a suit for land. It also referred to Adcon Electronics Pvt. Ltd. and Sumer Builders Pvt. Ltd., where the Supreme Court clarified that suits involving adjudication of title or delivery of possession fall within the ambit of “suit for land.”
The Court held that prayer (b) sought partition and handing over of share, thereby involving delivery of possession. Hence, the suit was clearly one for land.
On Clause XII, the Court held that where part of the land lies outside jurisdiction, leave must be obtained prior to institution. Such leave is a condition precedent and cannot be granted retrospectively.
Precedent analysis
The Court relied upon:
- Shiv Bhagwan Moti Ram Saraoji (Bombay High Court) – Partition suit is a suit for land.
- Adcon Electronics Pvt. Ltd. v. Daulat – Relief relating to title or possession determines whether suit is for land.
- Sumer Builders Pvt. Ltd. v. Narendra Gorani – Dispute concerning possession constitutes suit for land.
- Kenchegowda v. Siddegowda – Suit for partial partition is not maintainable.
- Quadricon Pvt. Ltd. v. Shri Bajrang Alloys Ltd. – Leave under Clause XII must precede institution.
Applying these authorities, the Court concluded that the suit could not survive.
Court’s reasoning
The Court held that since part of the immovable properties were located outside the Court’s jurisdiction and no leave under Clause XII was obtained before institution, the Court lacked jurisdiction over those properties.
Further, restricting the suit to properties within jurisdiction would amount to partial partition, which is barred by law.
As a result, the entire plaint was barred by law and liable to rejection under Order VII Rule 11 CPC. The Court rejected the argument that consequences could be deferred to final hearing.
Conclusion
The Bombay High Court allowed the interim application and rejected the plaint under Order VII Rule 11 CPC. No order as to costs was made.
Implications
This ruling reinforces the strict procedural mandate under Clause XII of the Letters Patent governing territorial jurisdiction in suits for land.
It clarifies that:
- Partition suits involving immovable property are suits for land.
- Leave under Clause XII is mandatory where part of the property lies outside jurisdiction.
- Such leave must be obtained before institution.
- Courts cannot salvage such suits by limiting them to partial partition.
The decision underscores procedural discipline in partition litigation and jurisdictional compliance in original civil jurisdiction matters.
Case Law References
- Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass (1951 SCC OnLine Bom 122) – Partition suit is suit for land.
- Adcon Electronics Pvt. Ltd. v. Daulat (2001) 7 SCC 698 – Suit for land involves title or possession.
- Sumer Builders Pvt. Ltd. v. Narendra Gorani (2016) 2 SCC 582 – Possession disputes fall within suit for land.
- Kenchegowda v. Siddegowda (1994) SCC 294 – Partial partition not maintainable.
- Quadricon Pvt. Ltd. v. Shri Bajrang Alloys Ltd. (2008) 3 Mh LJ 407 – Clause XII leave is condition precedent.
FAQs
1. Is a partition suit considered a “suit for land” under Clause XII?
Yes. The Bombay High Court reiterated that a partition suit involving immovable property is a suit for land.
2. When is leave under Clause XII of the Letters Patent required?
Leave is mandatory if any part of the immovable property lies outside the High Court’s original jurisdiction. It must be obtained before filing the suit.
3. Can a court allow partition of only properties within its jurisdiction?
No. A suit for partial partition is not maintainable. Absence of leave can result in rejection of the entire plaint.
