FIRST APPEAL BEFORE DISTRICT JUDGE

IN THE COURT OF THE LD DISTRICT JUDGE

AT ALIPORE
CIVIL APPELLATE JURISDICTION
REGULAR FIRST APPEAL
TITLE APPEAL NO. 6205/UJI
APPEAL ARISING OUT OF THE IMPUGNED ORDER DATED
5.2.2018 PASSE IN THE TITLE SUIT NO 976 OF 2017 BY THE
LD 1ST CIVIL JUDGE [JR DIV]
IN RE :
MADHUSUDAN DASGUPTA
s/o Haripada Dasgupta
Santi Nagar, Sapui Para , PS Balli
Dist: Howrah
………..Appellant
VS
RANJAN SAHA
s/o Murendar Ch Saha ,
5 Sree Ram Dhag Road , PS : Baliguange , Dist 24 Parganas
…….Respondent
VALUE OF THE APPEAL RS 200/-
MEMO OF APPEAL ON BEHALF OF THE APPELLANT FOR
REGULAR FIRST APPEAL
Being aggrieved and dissatisfied with the Order under Order 7 rule
11 of the Civil Code dated 9.2.2018 passed in the above Title suit
by the Ld 1st Civil Judge [Jr Div] in Madhusadan Dasgupta vs
Ranjan Saha, the appellant above named begs to prefer this
Memo of Appeal on the following amongst other:-
GROUNDS
1. For the impugned Order of the Trial Court are against the settled
principle of law, Evidence and probabilities of the case.
2. For the Ld Court below has been pleased to dismiss the suit by
the way of rejection of plaint on the contrary Ld Court ought to
have decreed the suit.
3. For the Ld Court below has failed to appreciate the scope,
extent and propriety of the suit in its proper perspective.
4. For the Ld Court below has failed to appreciate the status of the
parties in their proper perspectives.
5. For the Ld court below has failed to appreciate the factum of
fraud as a cause of action for bringing the Title Suit.
6. For the Ld trial Court did not apply its Judicial mind at the time of
passing the impugned Order for rejecting the Plaint under appeal.
7. For the Ld Court below has failed to appreciate the legal
connotation of certain interpretations such as :
Superior Court / higher forum
Cause of action and continuous/running cause of action
Fraud as an ingredient of the cause of action
Constructive Res-Judicata as not applicable in the Impugned Title
Suit
‘Substratum’ of a Suit and Playing Fraud with the Substratum of a
Suit
Equity relief
8. For the Ld Court below has erred in law and in fact in dismissing
the suit on the rejection of plaint under Order 7 Rule 11 of the Civil
Code while holding the following proposition of Law :
“ No Law authorized this court to set aside the Judgment of decree
passed by any higher forum “ —–[ A Civil Court of Seniour Division
is not higher forum and above a civil court of junior Division, is my
humble submission].
Section 34 of the Specific Relief Act has no application for setting
aside a Judgment and Decree passed by any court ….[On the
ground of fraud any judgment can be challenged and declared to
be set aside by an independent declaratory suit is my submission ]
All issues as preliminary issues in a Suit for the specific
performance of the contract in T.S no 25 /2007 “ were involved” in
the dismissed Suit ….[ The issues on merit of the matter which
may arise between the parties would not be within the realm of the
Court at the stage of an Order 7 rule 11 application is the ratio
in Kamala and Ors vs T Eshwara Sa and Ors (2008) 12 SCC
661, as relied by the appellant and mis-applied by the trial judge as
partially appreciated , is my humble submission]
The suit is barred by Constructive Res judicata …[ Order 7 R
11(d) , the ratio in Kamala and Ors vs K.T Eshwara Sa and Ors
(2008) 12 SCC 661 goes against the impugned proposition held
by the Ld Trial judge, is my submission]
9. For that, the impugned Order under appeal is mis-conceived ,
speculative and non application of law and mind, and result of
cursive non- heartful reading of the Plaint and relief as prayed
thereby.
10. For that, the impugned order under this appeal is otherwise
bad and cannot be sustained in law
And
Therefore, the Suit under this appeal shall be restored and decided
against the Respondent after setting aside the impugned Order
passed in 5.2.2018 in T.S No 976 of 2017.
Certifying that the grounds taken above are good grounds for
admitting this appeal
DATE:-14-11-2023
Drafted and settled by
Prajwal Singh
_________________________
PARTICULARS OF THE SUIT
VALUE OF THE SUIT Rs 200/-
COURT FES PAID RS. 200/-
VALUE OF THE APPEAL Rs 200/-
COURT FEES PAID FOR APPEALR Rs
_________________________________
SECOND APPEAL IN HIGH COURT
IN THE HON’BLE HIGH COURT OF JUDICATURE
AT Second Appeal No. SA/2023/004

(Under Section 100 C. P. C. )

Rajesh Kumar
versus
Deepika Singh
Proforma Plaintiff/Respondent

To
The Hon’ble Chief Justice and his Companion Judges of the High
Court of Judicature at Lucknow
Second Appeal against the judgment and decree of the Additional
Civil Judge, District Court, Lucknow dated 20th November 2023, in
Civil Appeal No. CA/2023/004 between Rajesh Kumar and Sneha
Verma, arising from judgment and decree in Original Suit No.
OS/2022/025. Mr. Sanjay Gupta is most respectfully submitted on
the following amongst other grounds of appeal:
Valuation of the Appeal: Rs. 120,000 as per valuation in the
original suit.
Court fee paid: Rs. 12,000.

GROUNDS OF APPEAL

1. Because the learned Appellate Court has not framed points for
decision in the appeal and has pressed only on one irrelevant and
evasive point in a roundabout way, bypassing judicial approach
and justice in the matter.

2. Because under Rule 26 of the U. P. Property Abandonment &

Land Reforms Act, 1955, if the building is abandoned, the site shall
escheat to the local council, the alleged property having been
abandoned, the site had long before become the property of the
Gram Panchayat and no issue or point has been framed by the
Courts below even in the face of the express pleading by the
Appellant in this respect.

3. Because the learned Appellate Court has misunderstood the law

as to ownership of the residential sites in dispute. It is totally
misconceived that since the respondent property owner was the
owner before the abolition of the Property Act, hence she is the
owner of the residential site in dispute. No possession is
established on record either by filing extracts from Family Register,
or extracts from the election record of Voters, or even by oral
evidence that such and such tenant is residing therein on behalf of
the property owner.

4. Because the bar to prove the mango trees within the property or
in plot No. 45 has been wrongly placed on the defendant/appellant.
It is the plaintiff who is to stand on her own legs, and it was she
who was to get the land surveyed, not the defendant/appellant.
The learned lower Appellate Court has miserably failed to import
justice according to established principles of law.

5. Because the judgment of the learned Appellate Court is

otherwise also against the provisions of law and facts on record.

6. Because the judgment of the learned Appellate Court is evasive

in nature and is no judgment in the eye of the law.

7. Because the suit being bad for non-joinder of the local council
and Gram Panchayat being necessary parties is liable to be
dismissed on this ground alone, and the appeal be allowed.

RELIEF CLAIMED:
It is, therefore, most respectfully prayed that the appeal may be
allowed, and the suit of the plaintiff/respondent be dismissed by
setting aside the judgment of the trial Court.

Dated: 5th January 2024 Counsel for the Appellant.