Madhya Pradesh High Court
Itc Ltd. vs Reshambai on 8 April, 2026
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
CIVIL REVISION No. 199 of 2024
ITC LTD.
Versus
RESHAMBAI AND OTHERS
Appearance:
Shri Kishore Shrivastava - Senior Advocate with Kunal Thakre -
Advocate for the appellants.
ORDER
(Reserved on :29.01.2026) (Pronounced on : 08.04.2026) The present revision under Section 115 CPC has beenfiled arising out of the order dated 19.01.2024 passed by the trial Court, whereby the trial Court has dismissed the application of petitioner-defendant No.5 that was filed under Order 7 Rule 11 CPC, for rejection of plaint.
2. The necessary facts in brief for the purpose of disposal of present petition as per what has been projected by the petitioners is that the suit has been filed in respect of survey Nos.68/3 and 68/7 by the plaintiffs, who are sisters or the legal heirs of deceased sisters of the defendant Nos.1, who has sold the lands in question to the other defendants. Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM 2
3. It is contended in the suit that the deceased Devi Singh, who was father of defendant No.1 was having lands in 7 different survey numbers total area 31.35 acres, which is the suit land and it is contended that deceased Devi Singhdied more than 30 years ago and some of his children have also expired and therefore, their legal representatives are being impleaded in the suit. It is contended that the lands are undivided Hindu family properties and there was no partition between the plaintiffs and defendants No.1 to 4, despite which there is a partition proceeding drawn by the revenue authorities dated 15.10.1986, which is forged and fraudulent proceedings and despite the position that the deceased Devi Singhin his lifetime had carried out oral partition of the lands in question and the lands and survey Nos.68/3 and 68/7 had fallen to the share of his daughters Resham Bai, Kamla Bai, Gulab Bai and Tara Bai despite which later on the defendant No.1 and his deceased brother Jagannath has carried out a fraudulent partition without informing the plaintiffs and by way of sale deed executed in terms of the said fraudulent partition of the year 1986, now the land has come to the ownership of defendant No.5, which is the present petitioner before this Court. The legal heirs of deceased brother Jagannath are defendants No. 2 to 4 in the suit.
4. Relief has been sought in the suit that the sale deed executed by defendant No.1 be declared null and void as against the interests of the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM 3 plaintiff and a decree of partition of agricultural land be passed and it may be declared that for survey Nos.68/3 and 68/7, the plaintiffs are entitled to get the same partitioned from the Revenue Court/Authority and permanent injunction be also granted in respect of these survey numbers.
5. Learned counsel for the petitioner has vehemently argued before this Court that the deceased Devi Singhhas left lands in seven different survey numbers, but in the suit, partition is only sought for two survey numbers, whereas it is settled in law that partition can only be carried out by metes and bounds and partial partition is not permissible. In that regard, vehement reliance was placed on judgment of the Hon'ble Supreme Court in Kenchegowda v. Siddegowda, (1994) 4 SCC 294 to contend that partial partition is a concept unknown to law and the suitfor partial partition is not maintainable.
6. Learned Senior Counsel has vehemently argued that it is general rule that where a suit for partition is brought by a coparcener against other coparceners, then it should embrace the whole family property, except where the portion of property is not available for partition.It is contended that in fact, it is the portion sold by the defendant No.1 and presently owned by the defendant No.5 is not available for partition and only for that land, partition is being sought. Therefore, it is a suit for partial partition, which is not maintainable at all.
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM 4
7. The learned counsel for the petitioner has also vehemently argued that the suit is prima facie barred by limitation. It is because it is a collusive suit. Earlier, a suit had been filed by the defendant No.1 himself along with his sons against the purchasers stating therein that the sale deed was got executed under influence of alcohol or by fraud and the said sale deed does not give any valid title to the purchasers of the sale deed. When the defendant No.1 was unsuccessful in getting temporary injunction in the said suit, then now he has set up the present plaintiffs, who are his sisters or the LRs of his sisters, just to take a chance by raising other grounds, which the vendor could not have taken and therefore, the suit is collusive in nature and the sisters were duly having knowledge of the sale transactions, which were carried out in the year 2015, whereas the suit has been filed in the year 2019.
8. It is contended that only because the applicant-defendant No.1 has constructed a facility over the land in question, therefore, there is a view to extract some money from the petitioner defendant No.5, the present suit has been filed. This is nothing but collusion with the vendor and an act of blackmail, and nothing else.
9. Learned Senior Counsel for the petitioner has also argued that the trial Court failed to consider that insufficient Court fees has been paid in the suit, because the plaintiffs want to avoid the sale deed and once there is Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM 5 a sale deed of the land, therefore, valuation and Court fees as per the land revenue could not have been paid and the valuation and Court fees ought to have been paid as per the sale deed. Moreover, the land has been diverted for Industrial purpose, and on the date of filing of suit, the land ceased to be agricultural land, and valuation on that basis is impermissible.
10. It is also argued that the petitioner has not purchased the land directly from the defendant No.1, but there were intermediary sale transaction in between and the petitioner has purchased the lands from the purchasers of defendant No.1, despite which those intermediary purchasers have not been impleaded, and the suit suffers from non-joinder of necessary parties.
11. On these assertions, it was vehemently prayed to allow the present reason, set aside the impugned order of the trial court and reject the plaint filed by the plaintiffs.
12. Despite service, the respondents have not appeared before this Courtand therefore, this Court has proceeded to hear the case in absence of the respondents.
13. The question as to limitation is taken up first. Upon considering the said question, it is seen that as per the plaintiffs, they got information and knowledge of the sale deed in question so also of the partition Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM 6 proceeding for the first time in the year 2019.The partition having taken place in the year 1986, though prima faciethe argument of the counsel for the petitioner is attractive, but no presumption of knowledge of the plaintiffs is made out. As per the plaint assertions, the plaintiffs did not have any knowledge of the partition of the year 1986 nor the sale deed executed in the year 2015.
14. It is settled in law that for the purpose of Order 7 Rule 11, only the plaint assertions are to be seen and if the defendants contend that the plaintiffs were having knowledge of the partition as well as the sale deed from a date prior to the date as projected by them, then it is something which is to be established by the defendant No.5 by adducing evidence, because from the plaint assertions, nothing is disclosed that the plaintiffs had any knowledge of the partition and execution of sale deed prior to 2019.
15. So far as the question of Court fees is concerned, admittedly, the plaintiffs are not party to the sale deed. Once they are not party to the sale deed, then they are not required to seek for cancellation of the deed and they are simply required to seek declaration that they are not bound by the deed.
16. It has been held by the Hon'ble Supreme Court in the case of Suhrid Singh vs. Randhir Singh, AIR 2010 SCW 3308thatwhere the Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM 7 executant of the sale deed wants it to be annulled, then he has to seek cancellation of that deed for which ad-valorem court-fee on the consideration stated in the sale deed is payable.In the present case, the plaintiffs, who are not parties, are not suing for cancellation of the deed. but merely for avoiding of the deed.
17.So far as the valuation part is concerned, on the date of partition as well as on the date of sale, the land was agricultural land and therefore, it has been valued as per the nature of the land, which was on the date of partition and on the date of sale and valuation has been made on the basis of land revenue, which is payable on the land as agricultural land. The petitioner contends that on date of filing of suit, the land had been diverted to Industrial use. If that is so, then it requires consideration of documents of the defendants, that is impermissible at the stage of consideration of application under Order 7 rule 11 CPC.
18. This Court does not find any error in the order of the Trial Court in the matter of valuation and Court fees. However, liberty is granted to the petitioner to take objection in the written statement and get it adjudicated alongwith other issues, or seek consideration at outset of trial, under Order 14 Rule 2 CPC, if no evidence is required.
19. Learned Senior Counsel for the petitioner has argued with most vehemence, the ground concerning the suit being for partial partition, in Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM 8 only seeking partition of survey Nos.68/3 and 68/7 though as many as seven different survey numbers have been stated to be in the ownership.
20. This argument is very attractive in the first flush, however, it is seen that this argument was not raised before the trial Court in the application under Order 7 Rule 11 CPC, nor was argued by before the trial Court and the trial Court has not considered the application on that aspect and therefore, it would not be appropriate that this Court should consider this ground for the first time in these proceedings.
21. Therefore, the petitioner is granted liberty to file a fresh application under Order 7 Rule 11 CPC raising the ground of partial partition. If the fresh application under Order 7 Rule 11 CPC is filed raising the ground for partial partition, then the said application shall be decided on its own merits by the trial Court.
22. So far as the question of non-joinder is concerned, the plaint cannot be rejected on that ground at the outset, and the effect of non- joinder has to be established in the trial. Therefore, the petitioner may raise the said ground in his written statement.
23. To sum up, the Revision petition is disposed off in the following terms :-
Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM 9
a. The petitioner is set at liberty to raise the ground of limitation in written statement.
b. The petitioner is set at liberty to raise the ground of non-joinder of necessary parties in written statement.
c. Liberty is also granted to raise the question of valuation and Court fees in written statement, in terms of para-17 above.
d. The petitioner is also granted liberty to file a fresh application under Order 7 Rule 11 CPC raising the ground of partial partition, in terms of para-20 above.
(VIVEK JAIN) JUDGE rj Signature Not Verified Signed by: RAJESH KUMAR JYOTISHI Signing time: 4/9/2026 6:21:04 PM