Bombay High Court
Halimabee Nazir Patel And Others vs Khurshidbee Mohd. Isa Pathan And Others on 18 February, 2026
2026:BHC-AUG:7550
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
120 WRIT PETITION NO. 13166 OF 2022
HALIMABEE NAZIR PATEL AND OTHERS
VERSUS
KHURSHIDBEE MOHD. ISA PATHAN AND OTHERS
...
Mr. Shaikh Faruk V. Patel, Advocate for the Petitioners.
Mr. Ambar S. Barlota, Advocate for Respondent No.1.
...
CORAM : SIDDHESHWAR S. THOMBRE, J.
DATE : 18th FEBRUARY, 2026
P.C.:-
1. Heard learned Advocates for the respective parties.
2. By the present petition, the Petitioner is aggrieved by the order dated 06.12.2022, passed below Exhibit-47 by the learned 13 th Civil Judge (J.D.), Aurangabad in R.C.S. No.1284 of 2022, whereby the application filed by the Petitioners/Original Defendants for rejection of plaint under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for short "CPC") came to be rejected.
3. Mr. Shaikh Faruk Patel, learned Advocate for the Petitioners strenuously submits that the Respondent No.1/Original Plaintiff has filed suit for partition, separate possession and perpetual injunction and he invited my attention to the pleadings as well as the prayers in the plaint. He further invited my attention to paragraph 18, whereby the Plaintiff has stated that:
2 of 7 120-WP.13166.2022 "18. The plaintiff submit that, the suit land is being ancestral properties of the father of the plaintiff and the plaintiff is having her legal share and interest in the suit property, but now the suit land is standing in the name of the defendants and taking undue advantage of the said fact, the defendants had constructed shopping complex not less than 120 shops, in the suit land and at present the defendants in collusion with each other are trying to sell out the shops as well as portion of the suit land and have managed to sell out entire property belonging to their share and more, and are benefitting from the same. ....."
4. He further points out that there was no any cause of action arose for the Respondent No.1/Original Plaintiff to file the suit and he invited my attention to paragraph No.7 by submitting that in paragraph No.7, the Plaintiff has taken the pleading which is as follows:-
"7. It is submitted that, after mutating the names of the legal heirs of the deceased Ahemadkhan Samsherkhan Pathan in the Revenue record vide mutation entry No.524, the elder son of deceased Ahemadkhan Samsherkhan Pathan namely Fakira Khan, who born from the wedlock of first marriage, he had sold out his share in the suit land to the extent of 2 Hector 91 Are, in favour of one Shamirkhan by way of registered Sale Deed No.2674 dated 21.05.1979 and accordingly as per the mutual understanding in between the parties after alienating of the said 2 Hector 91 Are land, Fakirakhan S/o Ahemadkhan has not remained any right, title and share in the suit property."
5. He further points out paragraph No.16 of the plaint and the pleading to that effect which is as follows:-
"16. It is pertinent to note that, the suit land Gut No.106 is totally admeasuring 30 Acres 29 Gunthas and out of which, some of the portion had been sold out by Nazirkhan and Fattekhan to various persons and more than 400 to 500 persons had purchased the small piece of the said land and if, the said persons will be made parties in the present suit, then it is not possible to decide the present suit during the life time of the present plaintiff, so also defendant No.10 Fattekhan Ahemadkhan orally assured to 3 of 7 120-WP.13166.2022 give share in the remaining portion of 3 Hector 95 Are to the plaintiff. Thus, it is crystal clear that, Fattekhan and Nazirkhan had sold out their share in the suit land to various persons and at present the plaintiff are claiming her legal share from the defendants in the land Gut No.106 to the extent of 3 Hector 95 Are."
6. By inviting my attention to the aforesaid paragraphs, learned Advocate for the Petitioners further drew my attention to the 7/12 extract at page No.37. He submitted that as per the 7/12 extract and the valuation report, the value of the suit property runs into crores of rupees. He further contended that the 7/12 extract clearly indicates that the land is non-agricultural in nature. According to him, the competent authority had already passed orders converting the land from agricultural to non-agricultural use and in that regard, he relied upon the order passed by the Tahsildar dated 28.06.1991 and order passed by District Collector dated 09.08.2010. On the basis of the said documents, learned Advocate submitted that no genuine cause of action had arisen for the Plaintiff to institute the suit. He contended that the alleged cause of action pleaded in the plaint is illusory and imaginary. It was further argued that the suit is grossly under-valued despite the property being of substantial market value and, therefore, the suit is barred by law, including the law of limitation. According to him, in view of the absence of a real cause of action and improper valuation, the plaint ought to have been rejected under Order VII Rule 11 of the CPC and the learned Trial Court erred in rejecting the 4 of 7 120-WP.13166.2022 application filed by the Petitioners.
7. He submits that the learned Trial Court on the above grounds ought to have allowed the application filed by the Petitioner. In support of his contention, he relied upon the following judgments.
(i). Arunesh Punetha Vs. Boston Scientific Corporation & Ors., reported in 2006 (3) AD (Delhi) 141;
(ii). Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Gajra)(D), Thr.
Lrs & Ors., reported in 2020 AIR (SC) 3310;
(iii). Smt. V. Vijayalakshmi Vs. Smt. Puttamma & Ors., reported in 2019 (1) Air Kar R 493;
(iv). Sardar Gurpreetsingh Gurnamsingh Pander Vs. Sangeeta Bhagchand Bhavle, in Writ Petition No.8225 of 2020 dated 03.01.2022;
(v). Ananta Gas Suppliers & Ors. Vs. Union Bank of India, reported in 2007 (3) R.C.R. (Civil) 709;
(vi). Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal, reported in 2017 AIR (SC) 2653;
(vii). A. Valiammal & Ors. Vs. C. Madhuram & Ors., reported in 2022 (1) LW 873;
(viii). K. R. Builders Pvt. Ltd. Vs. Delhi Development Authority & Anr., reported in 2008 (1) AD (Delhi) 120;
(ix). Rajiv K. Mehta Vs. Rekha H. Sheth & Ors., reported in 2014 (3) BCR 771;
(x). Manibhai Asharam Shah Vs. Ranchodbhai Cheetabhai Patel (Dec.) through Legal Heirs & Ors., reported in 2025 NCGUJHC 39551;
(xi). Smt. Uma Devi & Ors. Vs. Sri. Anand Kumar & Ors. in Special Leave Petition (Civil) No.2137 of 2025 dated 02.04.2025;
(xii). Anita Jain (Smt.) Vs. Dilip Kumar & Anr., reported 2018 AIR CC 1658;
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(xiii). M/s. Umed Realators, A registered Partnership Firm, having its Office at Sarafa Lane, Gandhi Chowk, Wani, District Yavatmal Vs. Smt. Shobha wd/o. Mahadeo Deshpande, reported in 2017(3) AIR Bom R 217;
(xiv). Tarvindrarsingh Mahendrasingh Dhillan Vs. Ambadas Asaram Mhaske & Ors. In Civil Revision Application No.169 of 2023 dated 07.03.2024.
8. After hearing learned Advocate for the Petitioners at length and upon perusal of the plaint and the application filed under Order VII Rule 11 of the CPC, it is not in dispute that the Plaintiff has instituted the suit for partition, separate possession and perpetual injunction claiming her alleged share in the suit property. The plaint specifically states that the Defendants refused to give her share and on account of such refusal, the cause of action arose. Once a specific cause of action is pleaded in the plaint, the same cannot be examined in detail at this stage so as to reject the plaint under Order VII Rule 11 of the CPC.
9. Insofar as the question of limitation is concerned, in a suit for partition, separate possession and perpetual injunction, the issue as to when the cause of action arose and whether the suit has been filed within limitation is essentially a mixed question of law and fact. Such issue requires adjudication on the basis of evidence to be led by the parties. Therefore, the said aspect cannot be conclusively determined at the stage of considering an application under Order VII Rule 11 of the 6 of 7 120-WP.13166.2022 CPC.
10. With regard to valuation, the contention of the Petitioners is that the suit is under-valued and ought to have been rejected under Sections 7 and 11 of the Court Fees Act. However, on perusal of the plaint and the 7/12 extract, it appears that the Plaintiff has claimed her share in the suit land to the extent of 3 Hectares and 95 Ares. The 7/12 extract on record indicates that the land is agricultural. The contention of the Petitioners that the land is non-agricultural and that constructions have been raised thereon gives rise to disputed questions of fact. Even assuming that certain portions have been sold to several purchasers, the Plaintiff has confined her claim to the remaining portion. Whether the constructions exist on the specific portion claimed by the Plaintiff is again a matter requiring evidence and trial.
11. Thus, the grounds raised by the Petitioners involve disputed and triable issues which cannot be adjudicated at the threshold. The plaint cannot be rejected merely on the basis of the defence raised by the Petitioners.
12. Considering the above, as the Plaintiff has valued the suit properly and paid the requisite court fees, I find that the learned Trial Court has not committed any error in rejecting the application filed under Order VII Rule 11 of the CPC.
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13. Hence, no case is made out for interference under Article 227 of the Constitution of India with the order dated 06.12.2022 passed by the learned Trial Court.
14. The present petition is accordingly dismissed. No order as to costs.
(SIDDHESHWAR S. THOMBRE, J.) Tauseef