IN THE COURT OF DITRICT JUDGE, BHOJPUR, ARA TITLE APPEAL NO.- 76 OF 2011 MD. AFZAL ANSARI VS.

RAJIV KUMAR GUPTA Written argument on behalf of the respondent: 1. The instant appeal have been preferred by the appellant against the judgment dated 28-04-2011 and decree dated 11-05-2011 passed by the Munsif I, Ara in the title suit no. 21/59 of 95/2009 whereby the court below after careful consideration of the pleadings of both the parties, their evidences oral as well as documentary was pleased to dismiss the suit without cost. 2. The appellant is the plaintiff who had filed the suit for declaration of his title over the suit property and possession as detailed in Sch.II of the plaint. Quote all the prayers of the plaint here. 3. Sch. I and II of the plaint is also detailed hereunder. Quote Sch. I and II 4. That thereafter the plaintiff filed an application under order 6 rule 17 by which it sort amendment in the plaint. By the proposed amendment the plaintiff practically wanted to change the detail of the entire property as well as the dimension of the property. It is pertinent to mention here that the amendment was filed after 13 years of the filing of the suit whereas no reason

what so ever was given for delay in bringing the change in the amendment petition. The court below after going through the argument of both the parties came to the conclusion that the proposed amendment tyo change the legislature of the suit and therefore the petition was dismissed. 5. That soon after the first amendment petition was dismissed the plaintiff filed the second amendment petition for the same relief of amendment which was already rejected earlier the defendant strongly contested the same. After hearing both the parties the amendment petition was dismissed on 25.2.2010 on the grounds that the amendment petition is not maintainable as the same petition has already been rejected at the same court. 6. That thereafter the appellant filed an application before the court below that they are moving Honble High Court against the said order. However, it seems that their application was rejected by the High Court therefore, they did not produce any such order of High Court before the trial court. 7. That it is pertinent to mention here that the plaintiffs had brought this false and fabricated suit in order to harass the defendant/ respondent. Having realized the frugality of their case the plaintiff took every possible step to delay the disposal of this suit, their only intention was to keep the suit pending and to harass the defendant/respondent in the garve of pendency of the suit. The court saw through their design and despite repeated attempts of the plaintiff, the suit was finally dismissed on 28-04-2011, 16 years after filing of this suit. All the relevant issues have been decided against the plaintiff as

they had failed to produce any oral or documentary evidence to prove their case or to dislodge the evidence produced by the defendant/appellant. 8. That having lost in the suit, the plaintiffs have preferred the instant appeal with the same intention of harassing the defendant/respondent under the garve of the pendency of the appeal. It is a gross abuse of process of law. 9. That the instant appeal is neither maintainable on facts nor on the law. 10. That in the instant appeal the appellant has included the amendments which they had twice prayed before the court below and had been rejected both the times by order dated 20-10-2008 and 25-02-2010. 11. That in the instant memo of appeal the appellant has not challenged any of the above two orders under section 105 of the C.P.C and without challenging the same has sought the entire amendment once again as a grounds of the appeal. 12. That it is a settled principle of law as held by the catena of judgments of the Honble Supreme Court that an issue once decided by the court, at one stage of the proceeding, unless challenged by a specific application, acts as an estoppels and the person cannot raise the same grievance at the subsequent stage of the proceeding. This is called issue estoppels and it clearly and squarely applies in the instant case. 13. That the application of amendment had been rejected firstly on 20-10-2008. The second application for amendment was rejected on 25-02-2010 on the ground that it was not maintainable because the earlier similar amendment

has been dismissed. The plaintiff/appellant sought time to go the High Court. So either he did not go to the High Court at all or if he moved the High Court, his petition might have been dismissed because he did not produce any positive order for the High Court before the court below. 14. That the attempt of the appellant to seek the amendment of the plaint in the garve of the grounds of memo of appeal is unknown to provisions of C.P.C, is against the public policy of issue estoppels, is a gross abuse of process of law and this prayer cannot be allowed as such a prayer is not only unknown to legal procedure but is also against the basic principle of law and justice. 15. That by this amendment the appellant has sought amendment to the plaint whereby apart from other prayers they have made a prayer to include old plot no. 275 in Sch. I of the plaint. It is pertinent to mention here that plaintiff no. 2 in his evidence before the court below in paragraph 18 of his evidence that he has no dispute with the plot no. 275. Further in para 32 the same witness deposed that has not purchased any part of plaot no.275. Now having thus said that he had no dispute with the plot no. 275 with the trial court, the prayer of the appellant to include plot no. 275 in the Sch.I is not only against his own evidence, but is mischievous, abuse of process of law and a blatent attempt to mislead the court for which the appellant should be taken to task and suitable action should be taken against him.