21.7.2026 Item No. 3 Ct. No.8 AGM/GB IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI CO 79 of 2026 Mosaraf Hossain Sarkar @ Hoque & Ors VS Chayan Haque & Ors Mr. Mominur Rahman. Mr. Bikash Singha. …..For the Petitioners Mr. Kunaljit Bhattacharya. Mr. Haider Ali. Mr. Satyam Sarkar. ….. For the Opposite parties. 1. The revisional application has been filed under Article 227 of the Constitution challenging inter alia, the order dated 9.4.26 passed by the Learned Civil Judge Junior Division, Jalpaiguri in Title Suit No. 65 of 2025 whereby the defendants application under Order VII Rule 11 read with order 6 Rule 17 and Section 151 CPC seeking rejection of the plaint has been rejected. 2. The moot question for consideration is whether the plaint is liable to be rejected at the threshold under Oder VII Rule 11 (b) & (d) CPC on the grounds of ; 2 i. Bar of limitation under Article 60 of the limitation Act, 1963 and; ii. Undervaluation and insufficient court fees under West Bengal Court Fees Act, 1970; 3. Learned counsel appearing for the petitioners submit that the plaintiffs have filed Title suit no. 65 of 2025 for declaration of title, cancellation of sale deed No.I-982 of 1982, and perpetual injunction, valuing the suit at Rs. 250/- only. 4. It is contended that at the time of execution of sale deed in 1982, plaintiff Nos. 2 and 3 were minors. Plaintiff no. 1 being the eldest member of the family, executed the deed on their behalf in accordance with Muslim personal law. 5. It is submitted that the suit is exfacie barred by Article 60 of the Limitation Act, 1963. The cause of action arose in 1982. The present suit filed after 43 years, is hopelessly time barred. Therefore, the plaint is liable to be rejected under Order VII Rule 11 (d) CPC. 3 6. It is further submitted that the plaintiffs have deliberately undervalued the suit and have not paid the advalorem court fees as required under the West Bengal Court Fees Act, 1970, therefore, attracts Order VII Rule 11 (b) CPC. 7. It is argued that the learned trial court has failed to appreciate the mandate of Order VII Rule 11 CPC and has erroneously rejected the application. The impugned order is thus perverse and calls for interference. 8. Per contra, learned counsel appearing for the opposite parties submit that deed no I-982 of 1982 is a fraudulent document. The plaintiffs were minors in 1982 and never executed the said deed. The same was executed without their knowledge and consent. 9. It is submitted that the suit has been filed seeking a declaration that the said deed is void ab initio and not binding upon the plaintiffs. 10. The learned counsel places reliance upon paragraph 34 of the judgment Hussain Ahmed Chowdhury – vs- Habibur Rahman (Dead) through LRs 4 in AIRONLINE 2025 SC 508 … “As suit for declaration that a document is not binding is distinct for a suit for cancellation.” Paragraph 34 is reproduced below: “34. Therefore, filing a suit for cancellation of a sale deed and seeking a declaration that a particular document is inoperative as against the plaintiff are two distinct, separate suits. The plaintiff in the rpesent case, not being the executants of the sale deed dated 05.05.1997 executed in favour of the respondent no. 1 (original defendant no. 14), was therefore, not obligated to sue for its cancellation under Section 31 of the Act, 1963. The question that remains is whether the plaintiff ought to have sought for a declaration that the sale deed dated 05.05.1997 was inoperative in so far as he is concerned or is not binding on him.” 11. Learned counsel further relies upon paragraph 29 (ii) and (iv) of another judgment of the Hon’ble supreme court Shanti Devi (since Deceased) through Lrs. Goran –Vs- Jagan Devi. reported in AIR 2025 Supreme Court 4342... Wherein it has been observed that “a document is void ab initio, the question of cancellation does not arise. The suit for possession is governed by 5 Article 65 of the Limitation Act and not Article 60. The plaintiffs, having been minors had the right to institute the suit within 12 years of attaining majority.” Paragraph 29 (ii) and (iv), are reproduced below : “ 29. (ii) Secondly, that when the document in question is void ab initio/or void, a decree for setting aside the same would not be necessary since such a transaction would be non-est in the eyes of law, owing to it being a nullity. (iv) Lastly, that if a deed was executed by the plaintiff when he was a minor and it was thereby void, he had two options to file a suit to get the property conveyed there under i.e., he could either file the suit within 12 years of the deed or within 3 years of attaining majority.” 12. Learned counsel also places reliance upon paragraph 6 of the judgment Suhrid Singh @ Sardool Singh – Vs- Randhir Singh & Ors. reported in AIR 2010 Supreme Court 2807…. Wherein it has been held that “a non executant of a deed who is in possession is only require to pay a fixed court fee for a declaratory relief. Adveloram court fee on the sale consideration is not payable.” Paragraph 6, is reproduced below: “6.Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. 6 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 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 7 under Section 7(iv)(c) of the Act. 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.” 13. It is thus submitted that no ground under order VII Rule 11 CPC is made out. The learned trial court has rightly rejected the application. 14. Having heard the parties and upon perusing the available records, I am of the considered view that the present dispute involves questions of fact. The issues as to whether the sale deed of 1982 was executed fraudulently, whether the plaintiffs were minors at the relevant time and the question of their possession, cannot be adjudicated upon, at the stage of order VII Rule 11 CPC without affording both parties an opportunity to lead evidence. 15. Order VII Rule 11 CPC contemplates a summary rejection of a plaint only where the case falls squarely within the clauses therein 8 and no triable issue arises. In the present case, the rival contention, supported by judgment of the Hon’ble Supreme Court, raise debatable issues which requires a full-fledged trail. 16. Upon careful consideration of the impugned order, I find that the leaned Trial court has not dealt with issues in the manner required by law and the order suffers from lack of proper consideration. 17. In view of the above discussions, the impugned order dated 9.4.2026 is hereby set aside. 18. The matter is remanded to the leaned Civil Judge, Junior Division, Jalpaiguri with a direction to reconsider the application under Order VII Rule 11 CPC afresh, in accordance with law and in light of the observations made herein. 19. The learned trial court shall conclude the exercise within a period of 4 weeks from the date of communication of this order. 20. It is clarified that the trial court shall decide the matter independently, uninfluenced by any observations made in this order. 21. The revisional application stands disposed of without going into the merits of the case. 9 22. However, it is made clear that Civil Judge, Junior Division, Jalpaiguri shall not be influenced by the observations made in the said order and shall be at liberty to take an independent decision to adjudicate the issues involved herein. 23. There shall be no order as to costs. 24. Urgent certifies photocopy of this order, if applied for, be supplied to the parties expeditiously on compliance of usual legal formalities. (Smita Das De, J.)