JUDGMENT & ORDER : Heard Mr. S.C. Das, learned counsel appearing for the appellants. Despite due notice from this court, none appears for the respondents. 2. This is an appeal under Section 100 of the CPC from the judgment dated 17.11.2011 delivered in Title Appeal No. 01 of 2011 by the Additional District Judge, Belonia, South Tripura. By the said judgment, the judgment and decree respectively dated 27.11.2010 and 30.11.2010 delivered in T.S. 48 of 2008 by the Civil Judge (Jr. Division), Belonia, South Tripura was partly modified. 3. The suit was instituted by the plaintiff-respondents seeking cancellation of the Sale Deed No. 1-824 of 1997, which has more been elaborately described in the schedule appended to the plaint. That apart, the plaintiff-respondents had in the suit urged to pass a decree directing the defendant-appellants to vacate the possession of the suit land and hand over the same to the plaintiffs and to the proforma-defendants No.4 to 11 and in the event of non-compliance to get the suit land recovered by the process of the court. 4. This is a case which has its own characteristics. The plaintiffs and the proforma-defendants No. 4 to 11 are the descendents and the legal heirs of one Haranath Nag who was the owner-in- possession of a tract of land measuring 13 gandas and 1 kara situated at mouza Belonia. In the year 1990, leaving behind his wife, four sons and four daughters Haranath Nag died. After his death, his wife and two sons died. The plaintiffs and the pro-respondents are the successors of Haranath Nag and the deceased legal heirs of Haranath Nag. It is also stated that all the surviving legal heirs have been residing in different places except one Bimal Krishna Nag who had been incidentally a bachelor and a person of bohemian character. Taking advantage of his character, the husband of the appellant No.1 entered into the possession and manufactured a sale deed which was under challenge in the suit. After the death of Bimal Krishna Nag, the defendant-appellant came into the possession of the un-partitioned property left by Haranath Nag. The said un-partitioned land has been described under the schedule for the suit land. The said land is situated at mouza Belonia appertaining to khatian No.954 and C.S.(new)plot No.858. After the death of Bimal Krishna Nag, the defendant-appellant came into the possession of the un-partitioned property left by Haranath Nag. The said un-partitioned land has been described under the schedule for the suit land. The said land is situated at mouza Belonia appertaining to khatian No.954 and C.S.(new)plot No.858. The plaintiff namely Amal Krishna Nag, since deceased, have stated that he came to know only 03.11.2006 that there was ostensible disposition of the property as described in the schedule of the land by Bimal Krishna Nag. As he had been living at New Delhi, he had no immediate knowledge and after he gathered the said knowledge, he filed the suit. This fact has been averred in the Para-15 of the plaint but the defendant-appellants did not contest the said averment. 5. Neither the plaintiff nor the respondents No.4 to 11 did dispute that Bimal Krishna Nag was one of the co-sharers of the un-partitioned land as left by Haranath Nag. The share, if measured, would be 1½ gandas as the total land as left by Haranath Nag is measured at 0.264 acre. Thus, the share of Bimal Krishna Nag would come to 1½ ganda and odd. By the disputed sale deed, Bimal Krishna Nag transferred the land measuring .04 acre from outside his dwelling hut, but within the un-partitioned property on recording the consideration of Rs.30,000/- by the said sale deed bearing No. 1-824/1997. By filing the suit, the plaintiff had sought for cancellation of the said deed bearing No. 1-824/1997 as void and non-executable. Further, there is prayer for recovery of the possession of the land to the original plaintiff and the defendant-respondents No.4 to 11. 6. The trial court by the judgment dated 27.11.2010 has declared that the sale deed No. 1-824/1997 was void and non-executable and it has been further declared that the defendants No.1,2 and 3 are not entitled to get the possession over the suit land and hence, they were directed to vacate the possession over the said property. 7. Being aggrieved by the said judgment dated 27.11.2010 delivered in T.S. No. 48 of 2008, the defendant-appellants preferred an appeal under Section 96 of the CPC being T.A. No. 01 of 2011 in the court of the Additional District Judge, South Tripura, Belonia. By the impugned judgment dated 17.11.2011, the said appeal was partly allowed observing as under : “10. Being aggrieved by the said judgment dated 27.11.2010 delivered in T.S. No. 48 of 2008, the defendant-appellants preferred an appeal under Section 96 of the CPC being T.A. No. 01 of 2011 in the court of the Additional District Judge, South Tripura, Belonia. By the impugned judgment dated 17.11.2011, the said appeal was partly allowed observing as under : “10. In the case in hand, though the defendants in their written statement have taken the plea that the suit land was nal and doba land, perusal of the sale deed marked Exbt.1 reveals that the land was bastu and viti class. The finding in the impugned judgment that the joint property has not been partitioned, has remained unchallenged. So, for the twin reasons that the suit land is a dwelling house and it has not been partitioned, in the light of the two authorities above referred, it cannot be said that the declaration of the learned Court below that the defendants are not entitled to have joint possession in the suit property and are required to vacate the same is illegal. The remedy of the appellants is thus to vacate the suit land and sue for partition of their share to the extent of 1 and ½ ganda. 11. In the result, the impugned judgment and decree is modified to the extent that the sale deed bearing No. 1-824 of 1997 is declared void and non-executable to the extent of land exceeding one and ½ ganda with the common and convenient boundary of the unpartitioned land. The declaration that the defendants are not entitled to have joint possession in the suit property is upheld. They are accordingly directed to vacate the possession of the suit land within the period of three months from today failing which the respondents shall be entitled to recover the possession in due process of law. ” 8. Now the defendants have challenged the said judgment dated 17.11.2011 by filing this appeal under Section 100 of the CPC. 9. At the time of admission, the following substantial questions of law were formulated: “(i) Whether in absence of any prayer under Section 31 of SR Act, 1963 the Courts below were justified or had jurisdiction to declare the sale deed dated 16.04.1997 as void or in-executable wholly or partly. 9. At the time of admission, the following substantial questions of law were formulated: “(i) Whether in absence of any prayer under Section 31 of SR Act, 1963 the Courts below were justified or had jurisdiction to declare the sale deed dated 16.04.1997 as void or in-executable wholly or partly. (ii) Whether in the facts and circumstances of the case the provision of Section 44 of the TP Act, 1882, was at all applicable for consideration by the Courts below.” Even though, the liberty was granted to raise other substantial questions of law, Mr. S.C. Das, learned counsel appearing for the appellants did raise an ancillary substantial question of law viz. whether the suit was barred by limitation inasmuch as the impugned sale deed was executed on 16.04.1997 and the suit was filed on 15.12.2008. 10. There cannot be any amount of dispute that the limitation prescribed for cancellation of the registered instrument is three years. Apparently the suit was filed much before the period of limitation. But as stated in Para-15 of the plaint that when the plaintiff-respondents disclosed and declared that he gathered the knowledge of such execution of the sale deed in respect of a part of their un-partitioned joint property on 03.11.2006, he was perplexed and thereafter he filed the suit and the said date had not been disputed by the defendants when they filed their written statement. Thus, the said averment did remain uncontested. As such, the limitation started to run out from 03.11.2006 and the suit therefore was filed within the period of limitation. Another question that has been raised by Mr. Das, learned counsel appearing for the appellants is that the suit land was largely a vacant land and that was never inhabited by any of the co-sharers except the defendant No.1 and her family. In that context of the matter, whether a decree for recovery is sustainable or not? 11. Be that as it may, the additional questions as raised by Mr. S.C. Das, learned counsel appearing for the appellants did not survive the scrutiny inasmuch as when there is no denial as regards the day of knowledge, i.e. 03.11.2006. The objection as to the limitation as raised by the defendant-respondents is without substance. 11. Be that as it may, the additional questions as raised by Mr. S.C. Das, learned counsel appearing for the appellants did not survive the scrutiny inasmuch as when there is no denial as regards the day of knowledge, i.e. 03.11.2006. The objection as to the limitation as raised by the defendant-respondents is without substance. Further, whether the land was entirely vacant or the land was occupied by one of the co-sharers, namely Bimal Krishna Nag is a matter of inquiry to the fact. The defendants did not give the alternative evidence in this regard, even though the plaintiff had specifically pleaded the suit land was occupied by the plaintiff through one of the co-sharers namely Bimal Krishna Nag and as such this ground of objection falls through. 12. So far the objection as raised in the form of the substantial question as reflected in the order dated 15.02.2012 that whether in absence of any prayer under Section 31 of the SR Act, 1963 the suit is bound to fail, has to be appreciated in the light of the prayer that the sale deed being No.824 of 1997 dated 16.04.1997 is liable to be declared void, non-executable. The said prayer clearly comes within the province of Section 31 of the Specific Relief Act. Its framing may not be perfect. The other question, whether in the circumstances provision of Section 44 of the TP Act, 1988 can at all be applied or not. Since the plaintiff and the proforma-defendants No.4 to 11 did not dispute the title of one of the co-sharer namely, Bimal Krishna Nag, therefore, there cannot be any amount of confusion that Bimal Krishna Nag was one of the co-sharers of the un-partitioned land left by their father, Haranath Nag as shown in the schedule of the suit land. Thus said Bimal Krishna Nag had the title jointly over the suit land. Since the said property was un-partitioned, Bimal Krishna Nag did not have the absolute right to sell any part of that property as the un-partitioned property are attached a common proprietorship of the co-sharers. If the un-partitioned land is not partitioned according to the law, the share of the co-sharers is only specific, not any part and parcel of the land with definite boundaries. However, Section 44 of the Transfer of Property Act has provided a unique provision to protect the bonafide purchasers. If the un-partitioned land is not partitioned according to the law, the share of the co-sharers is only specific, not any part and parcel of the land with definite boundaries. However, Section 44 of the Transfer of Property Act has provided a unique provision to protect the bonafide purchasers. Section 44 of the Transfer of Property Act intends to save such transfer to the extent of the share belonging to the person who executed the sale deed without absolute right to the ownership and without authority from the remaining co-sharers. By such defective transfer, only the share of the person who sought to transfer the land absolutely would devolve to the person in whose favour a defective deed is executed. 13. Thus, the first appellate court has correctly observed that the defendant No.2 in particular in whose favour the title deed No.824 of 1997 was executed would be entitled to the share amounting to an area of 1 ½ gandas of land, if converted roughly. Thus, the first appellate court has correctly observed that the sale deed will remain void and in-executable. But over the suit land, the defendants No.1, 2 and 3 would have the right to the share equal to each of the co-sharer. But unless the property is partitioned, the defendants No. 1, 2 and 3 being the strangers in the said joint property and not the co-sharers, they cannot have any right to possession on the basis of that share that has been deemed to have transferred to Ratan Dey, predecessor of the defendants No.1, 2 and 3. 14. The defendants No.1, 2 and 3 are liable to vacate the suit land within a year from today, if in the meanwhile, the suit land is not partitioned and share of the defendants No. 1 to 3, to the extent of share of Bimal Krishna Nag, since deceased is identified by definite boundaries either by way of amicable settlement. The defendants No. 1, 2 and 3 shall vacate the suit land with prejudice to their share as declared in terms of Section 44 of the Transfer of Property Act within a period of a year from today. Else, the plaintiff may recover the possession of the part/or the whole of the suit land through the process of the court. Subject to this modification, this appeal is dismissed. Draw the decree accordingly. Send down the LCRs thereafter.