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Form No. (J) 2

HEADING OF THE JUDGMENT IN ORIGINAL SUIT/ CASE

IN THE COURT OF MUNSIFF NO. 2

DHUBRI

Present: - Shri Siddarth Brook, A.J.S.

Munsiff No. 2, Dhubri.
Tuesday, the 21st day of January, 2019

Title Suit No. 256 of 2012

1. Narendra Chandra Roy

………….……Plaintiff.

- Versus -

1. Cheton Kumar Roy

2. Kanai Basfore
...…………Defendants.

1. The State of Assam, Represented by the

Collector, Dhubri
.…………Proforma Defendants.

This suit/ case coming on for final hearing on 19.12.2018 in presence of

M.K. Roy.........………………………………..…….…………….…Advocate/Pleader for Plaintiff.

Aminul Islam...........................................….…….…Advocate/Pleader for Defendants.

and having stood for consideration to this day, the Court delivered the following
Judgement.

JUDGMENT

1. This is a suit for cancellation of sale deed.

TYPED BY ME
Shri Siddarth Brook
Munsiff No. 2, Dhubri
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Plaintiff’s Case

2. The plaintiff’s case is that plaintiff and defendant no.1 are the brothers and
co-pattdars of the land shown in Schedule A. Plaintiff has also instituted
another suit for partition of the said land. But during the pendency of the
partition suit, defendant no.1 has sold out Schedule B land vide sale deed no.
1493 dated 03.11.2011 to defendant no.2 without the knowledge and consent
of the plaintiff. Plaintiff came to know about the alleged sale when he made
inquiries at the office of ASO. Plaintiff was informed the defendant no.2 got
his name mutated from in the Schedule B land. Plaintiff avers that Schedule B
land is a joint undivided land jointly owned by plaintiff and defendant no.1
and therefore defendant no.1 has no right to execute any sale deed without
first getting the Schedule A land partitioned. Hence, plaintiff has filed this suit
praying to get the sale deed cancelled.

Defendant’s case
3. The defendants in their written statement has averred that the suit is bad for
non-joinder of parties as the plaintiff did not make all the legal heirs of his
deceased father named-Shyamananda Roy as the deceased father of the
plaintiff and the defendant no.1 was the original owner of the land involved in
the suit deed. After the death of deceased-Shymananada Ray, he left his wife
Sorojini Roy and five sons namely (i)Narendra Ch. Roy (Plaintiff) (ii)Mahendra
Roy (iii)Jogendra Roy (iv)Khagen Roy (v)Chetan Roy (Defendant No.1) out of
them Sorojini Roy, Mohendra Roy & Jogendra Roy died. Mahendra died
unmarried, Jogendra Roy died leaving his four daughters-(i)Barnali Roy
(ii)Depamoni Roy (iii)Mitali Roy (iv)Puja Roy, they are not made parties in the
suit in hand. So, the suit cannot be properly adjudicated without impleading
them as parties in this suit. Defendants have also stated that plaintiff, though
has got his name mutated in the suit land but he is not a co-sharer of the suit
land as he has sold more than his share of land. It is defendant no.1 who was
had right, title and interest over the Schedule B land and therefore he sold
the said land to defendant no.2 delivered its possession to him with the full

TYPED BY ME
Shri Siddarth Brook
Munsiff No. 2, Dhubri
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knowledge and consent of the plaintiff. Defendants alleged that plaintiff has
sold a major portion of their father’s land and he do not reside over the suit
land. Plaintiff has illegally got his name mutated in the suit land. It is
defendant no.1 who has been possessing the suit land since 22 years.
Defendant no.1 has admitted that he has sold the suit land in favour of
defendant no.2 as he had right, title and interest over the suit land.
Defendants have prayed for dismissal of the suit.

Issues
4. Upon the pleadings of the parties, the following issues were framed in this
suit:
(a) Whether the suit is maintainable in Law and facts?
(b) Whether there is cause of action?
(c) Whether the suit is bad for non-joinder of necessary parties?
(d) Whether the suit is undervalued?
(e) Whether the suit is barred by limitation?
(f) Whether sale deed no.1493 dated 03.11.2011 is fraudulent, void and
inoperative?
(g) Whether plaintiff entitled to the decree as prayed for?
(h) To what other reliefs the parties entitled to?

Peremptory Hearing
5. At the time of peremptory hearing plaintiff side adduced the evidences of
three (3) witness viz. Narendra Chandra Roy as PW-1, Gyan Chandra Rajak as
PW-2/Official Witness and Dulal Chandra Das as PW-3/Official Witness and
also exhibited few documents. The defendant side has adduced the evidence
of Cheton Kumar Roy as DW-1 and exhibited few documents.
6. I have gone through the entire case record and the evidences adduced at the
time of trial. I have heard the argument advanced by learned counsels and
considering all aspects attained to the following decisions.

TYPED BY ME
Shri Siddarth Brook
Munsiff No. 2, Dhubri
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Discussion, Decision and Reasons Thereof

Issue No. 1: Whether the suit is maintainable in present form?
7. The defendants have contended that the suit is not maintainable both in law
and facts but did not adduce any evidence in support or the same. Moreover,
I do not see any grounds for holding the suit to be not maintainable as the
suit has been filed with proper court fees and within the territorial jurisdiction
of this Court. The plaint is filed in duplicate and pleadings are verified at the
foot.
Hence, on the basis of the above, this issue is decided in affirmative and in
favour of the plaintiff.
Issue No. 2: Whether there is cause of action for the suit?
8. The plaintiff has averred that he along with defendant no.1 is the co-pattadar
of the suit land. But defendant no.1 had sold a portion of the suit land to
defendant no.2 without getting the suit land partitioned and without the
consent and knowledge of the plaintiff. The defendants have stated that
plaintiff is not a co-sharer of the defendant no.1 in the suit land and plaintiff
do not have any right, title and interest over the suit land. It appears from
the rival pleadings of the parties that there is a dispute with regards to the
title over the suit land, and validity of the sale deed executed by the
defendant no.1 in favour of defendant no.2 and the same has given rise to
the cause of action and it is the matter to be adjudicated upon. Hence, I am
of the opinion that there is cause of action in the suit.
Accordingly, this issue is decided in affirmative.
Issue No. 3: Whether the suit is bad for non-joinder of necessary
parties?
9. The Hon’ble Supreme Court in Mumbai International Airport (P) Ltd. v.
Regency Convention Centre & Hotels (P) Ltd. Reported in (2010) 7 SCC 417
has held that:
A “necessary party” is a person who ought to have been joined as a
party and in whose absence no effective decree could be passed at all

TYPED BY ME
Shri Siddarth Brook
Munsiff No. 2, Dhubri
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by the court. If a “necessary party” is not impleaded, the suit itself is

liable to be dismissed.”

The defendants have pleaded that the legal heirs of deceased Shyamananda
Roy (Father of plaintiff and defendant No.1) were not made parties in the
suit. On perusal of the plaint it is clearly made out that plaintiff has no claim
against such persons. But the disputed land is a joint family property and
according to the plaintiff, he and defendant no.1 are co-pattadars of the suit
land, while defendants claim that plaintiff do not have any right, title and
interest over the suit land. This rival contentions by both sides have raised a
questions as to whether plaintiff and defendant no.1 have joint right, title and
interest over the Schedule A land? On perusal of Exhibti-1, it appears that
there are altogether fourteen numbers of pattadars of Schedule A land of
which suit land is a part. But apart from defendant no.1 none of the other co-
pattadars have been either made parties in the suit or got them examined.
Plaintiff has neither submitted any document containing the terms and recitals
of family arrangement or mere memorandum prepared after family
arrangement to prove that Schedule A land has been duly partitioned. Hence,
I deem it fit to hold the Schedule A land as Joint family property standing in
the names of fourteen co-shares as shown in Exhibit-1.
10. The instant suit being a suit for cancellation of the sale deed wherein the
subject matter of the sale deed is a joint family property, therefore presence
of co-sharers would, in my considered opinion, enable the court to
completely, effectively and adequately adjudicate upon all matters in dispute
in the suit. However the nature of suit is not such where if such co-sharers
are not made parties no effective decree could be passed at all by the court.
Therefore the co-sharers named by the defendants in their pleadings are
proper parties and not necessary parties accordingly the suit is not bad for
non-joinder of necessary parties.
Hence, this issue is decided in negative and in favour of the plaintiff.

TYPED BY ME
Shri Siddarth Brook
Munsiff No. 2, Dhubri
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Issue No. 4: Whether the suit is undervalued?

11. Defendants have stated the suit undervalued as plaintiff did not pay
advaloram court fees as to the relief claimed in respect to the sale deed no.
1493 dated 03.11.2011. Hon’ble Supreme Court in Suhrid Singh v. Randhir
Singh, reported in (2010) 12 SCC 112 has held as follows:
“7. Where the executant of a deed wants it to be annulled, he
has to seek cancellation of the deed. But if a non-executant
seeks annulment of a deed, he has to seek a declaration that
the deed is invalid, or non est, or illegal or that it is not binding
on him. The difference between a prayer for cancellation and
declaration in regard to a deed of transfer/conveyance, can be
brought out by the following illustration relating to A and B, two
brothers. A executes a sale deed in favour of C. Subsequently A
wants to avoid the sale. A has to sue for cancellation of the
deed. On the other hand, if B, who is not the executant of the
deed, wants to avoid it, he has to sue for a declaration that the
deed executed by A is invalid/void and non est/illegal and he is
not bound by it. In essence both may be suing to have the
deed set aside or declared as non-binding. But the form is
different and court fee is also different. If A, the executant of
the deed, seeks cancellation of the deed, he has to pay ad
valorem court fee on the consideration stated in the sale deed.
If B, who is a non-executant, is in possession and sues for a
declaration that the deed is null or void and does not bind him
or his share, he has to merely pay a fixed court fee of Rs.
19.50 under Article 17(iii) of the Second Schedule of the Act.
But if B, a non-executant, is not in possession, and he seeks
not only a declaration that the sale deed is invalid, but also the
consequential relief of possession, he has to pay an ad valorem
court fee as provided under Section 7(iv)(c) of the Act.

TYPED BY ME
Shri Siddarth Brook
Munsiff No. 2, Dhubri
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8. Section 7(iv)(c) provides that in suits for a declaratory

decree with consequential relief, the court fee shall be
computed according to the amount at which the relief sought is
valued in the plaint. The proviso thereto makes it clear that
where the suit for declaratory decree with consequential relief
is with reference to any property, such valuation shall not be
less than the value of the property calculated in the manner
provided for by clause (v) of Section 7.”
12. In this instant case, plaintiff has specifically stated that he is in joint
possession over the Schedule A land and he has not executed the sale
deed in question, therefore plaintiff has to sue for a declaration that
the deed executed by A is invalid/void and non est/illegal and he is
not bound by it. On the basis of the above discussion, I am of the
opinion that the suit of the plaintiff will be governed by Section 7 (4)
(c) of the Court Fees Act and that plaintiff has correctly valued the suit
and proper court fees thereof has been paid.
Hence, this issue is decided in negative.
Issue No. 5: Whether the suit is barred by limitation?
13. Defendants have also stated that the suit is barred by law of limitation.
Plaintif has instituted this suit praying for a relief that sale deed no. 1493
dated 03.11.2011 be declared fraudulent, void and inoperative. The sale deed
was executed on 03.11.2011 as such the cause of action and right to sue has
accrued upon the plaintiff on the said date and instant suit has been
instituted on 06.06.2012 which is within the period of limitation.
Hence this issue is decided in negative and in favour of the plaintiff.
Issue No. 6: Whether the sale deed no. 1493 dated 03.11.2011 is
fraudulent, void and inoperative?
14. Defendant no.1 has executed Sale Deed No. 1493 dated 03.11.2011 in favour
defendant no.2 with respect to Schedule B land which is a part of Schedule A
land. DW-1 has deposed during his evidence that he has right, title and
interest over the Schedule B land and that is why he sold the said land to

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Shri Siddarth Brook
Munsiff No. 2, Dhubri
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defendant no.2. The learned counsel for the defendants in his written
arguments has stated that Deputy Commissioner has given the permission to
execute the sale deed after due inquiries and informing all the pattadars and
thereafter the name of defendant no.2 was mutated against the suit land
after issuing notice to all the pattadars. But, defendant side could not adduce
any evidence to show that Schedule B land stands in the name of defendant
no.1. However, Exhibit-1 shows that Schedule A land has been recorded in
the name of 14 (Fourteen) co-sharers. Even PW-2 has deposed that suit is
recorded the name of 14(Fourteen) pattadars. It follows from the above
discussion that the Schedule A land is still joint property. Therefore, the rule
laid down under section 44 of The Transfer of Property Act, 1882 shall be
attracted. Section 44 of The Transfer of Property Act, 1882 provides that
“Where one of two or more co-owners of immoveable property legally
competent in that behalf transfers his share of such property or any interest
therein, the transferee acquires as to such share or interest, and so far as is
necessary to give, effect to the transfer, the transferor’s right to joint
possession or other common or part enjoyment of the property, and to
enforce a partition of the same, but subject to the conditions and liabilities
affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an
undivided family is not a member of the family, nothing in this section shall
be deemed to entitle him to joint possession or other common or part
enjoyment of the house.”
15. Hon’ble Supreme Court in M.V.S. Manikayala Rao v. M. Narasimhaswami,
reported in (1966) 1 SCR 628 has held that, “It is well settled that the
purchaser does not acquire any interest in the property sold and he cannot
claim to be put in possession of any definite piece of family property. The
purchaser acquires only an equity to stand in the alienor's shoes and work out
his rights by means of a partition.”
16. Thus, the right of defendant no.2 would be for a joint ownership and not for
exclusive ownership of the joint property. Defendant no.2 is not in a better

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Shri Siddarth Brook
Munsiff No. 2, Dhubri
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position than the co-owner himself. The principles of section 44 of Transfer of

Property Act shall govern the transfer of property by defendant no.1 in favour
of defendant no.2. On the basis of the above discussion and in light of section
44 of The Transfer of Property Act the sale deed no. 1493 dated 03.11.2011
is neither fraudulent nor void and inoperative.
Accordingly the issue is decided in negative and against the plaintiff.
Issue No.7: Whether the plaintiff is entitled to the decree as prayed
for?
Issue No.8: To what reliefs the parties are entitled to?
17. For the sake of brevity I shall be discussing Issue no. 7 and 8 together for the
sake of brevity. On the basis of the foregoing discussions and decision, I find
Schedule A land is a joint property standing in the name of 14 (Fourteen)
pattadars. The suit land sold by defendant no.1 in favour of defendant no.2
vide sale deed no. 1493 dated 03.11.2011 is found to be valid; and the said
transfer shall be governed by Section 44 of The Transfer of Property Act.
Hence, plaintiff is neither entitled to any decree nor entitled to any reliefs
which he has prayed for.
Accordingly, Issue No. 7 and 8 are decided in negative and against the
plaintiff.
ORDER

18. On the basis of the foregoing discussions and decision arrived at, issue no.6,
7 and 8, it is found that plaintiff is not entitled to any decree as prayed for.
Accordingly, the suit is dismissed on contest without cost.
19. Prepare the decree accordingly within 15 (fifteen) days.
20. Given under my hand and seal on this 21st day of January, 2019 at Dhubri.

(Shri Siddarth Brook, A.J.S.)

Munsiff No. 2,
Dhubri

TYPED BY ME
Shri Siddarth Brook
Munsiff No. 2, Dhubri
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APPENDIX

Plaintiff’s witness: -

1. PW-1 : Narendra Ch. Roy

2. PW-2 : Gyan Chandra Rajak
3. PW-3 : Dulal Ch. Das

Plaintiff’s Exhibits: -

1. Exhibit 1 : Certified copy Jamabandi

2. Exhibit 2 : Certified copy of the sale deed

3. Exhibit 3 : Land revenue receipt

Court’s witness: -

Nil

Defendant’s witness: -

1. DW-1 : Chetan Kumar Roy

Defednant's Exhibits: -

1. Exhibit A : Khatian (P.I.O.)

2. Exhibit B : Jamabandi (P.I.O.)

3. Exhibit C : Jamabandi (P.I.O.)

4. Exhibit D : Khatian (P.I.O.)

(Shri Siddarth Brook, A.J.S.)

Munsiff No. 2,
Dhubri.

TYPED BY ME
Shri Siddarth Brook
Munsiff No. 2, Dhubri