G.Suryakumari & Anr vs B.Chandramouli & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8476 OF 2009 [Arising out of SLP(C) No.7296 of 2006]

G. Suryakumari & Anr. .....Appellants

Versus

B. Chandramouli & Ors. ..... Respondents

JUDGMENT

Deepak Verma, J.

1. Leave granted.

2. Defendants-appellants, feeling aggrieved by the judgment and

decree pronounced by learned Single Judge of the High Court of

Andhra Pradesh at Hyderabad, in respondents' S.A. No. 541/2002 C.A. @ S.L.P. (C) No.7296 of 2006 -2-

decided on 20.2.2006, are before us challenging the same on variety

of grounds.

3. Respondents herein as plaintiffs had filed Original Suit No.

5731 of 1994, against the present appellants/ defendants, for the

relief of perpetual injunction restraining them from interfering in any

manner into their peaceful possession and enjoyment over the Suit

Schedule Property to an extent of 1,200 sq. yards forming part of

House No. 6-3-584/31/B covered by Survey Nos. 94, 95 and 96 of

Ward No. 3 out of 38,382 sq. yards belonging to M/s. Gramodyog

Cooperative Housing Society, situated at Khairtabad, Hyderabad.

4. According to the plaint averments, respondents/plaintiffs

contended that schedule property is part of 50,000 sq. yards

covered by Survey Nos. 94, 95 and 96. It originally belonged to Dr.

Ahmed Mirza from whom Smt. K. Parvathi Devi and four others

purchased the same under registered sale deed dated 17.3.1961.

Thereafter, M/s. Gramodyog Cooperative Housing Society

purchased an area admeasuring 38,382 sq. yards from them by a

registered deed of sale executed on 20.9.1962. Respondent Nos. 1

and 2 purchased 600 sq. yards each under registered sale deeds

from the said society on 17.1.1994 and 19.1.1994 respectively. C.A. @ S.L.P. (C) No.7296 of 2006 -3-

After the execution of sale deeds, they raised boundary walls and

invested huge amounts of money for its development. They also

submitted plans for construction of houses, after paying necessary

fee, for grant of such permission. Respondent Nos. 1 and 2,

therefore, claimed to be title holders of the said lands and having

possession over the same but appellants/defendants without any

right whatsoever tried to encroach about 382 sq. yards of the

schedule property, claiming the same to have been purchased from

a society, viz., M/s. Anand Jyothi Cooperative Housing Society.

The respondents with great difficulty could resist illegal acts of

encroachment by the appellants and lodged an FIR in this regard

with the concerned Police Station but police did not take any

appropriate action in the matter. On or about 8.12.1994 with the

help and assistance of anti social elements, appellants once again,

tried to encroach Suit Schedule Property of the respondents. They

resisted the attempts of the appellants with the help of neighbours.

Since there existed imminent danger of their land being encroached

upon by the appellants, they were constrained to file suit for

perpetual injunction against the appellants with a prayer to restrain

them from encroaching upon their land in any manner whatsoever. C.A. @ S.L.P. (C) No.7296 of 2006 -4-

5. On summons being issued to them by the Civil Court, the

appellants herein filed their Written Statement, denying the claim

of the respondents/plaintiffs. According to them, schedule land is

part of Survey No. 105/1 of Khairtabad village, which originally

belonged to Hazmatunnisa Begum, who had gifted the same to

Zohra Begum by gift deed dated 1.9.1966. Zohra Begum, after

becoming owner had sold Ac. 4-36 cents to Ch. Achaiah by

registered sale deed dated 8.9.1966 from whom M/s. Anand Jyothi

Cooperative Housing Society had purchased 4,990 sq. yards under

registered sale deed dated 8.5.1970 with specific boundaries. After

purchase, the said society also got the layout plan approved from

Municipal Corporation, Hyderabad. Internal roads were laid. The

land was divided into plots with specific numbers and allotted to its

members. Appellants have contended that the said society had

executed registered sale deed dated 25.10.1993 in favour of first

defendant i.e. Respondent No. 3 herein K.V.J.R. Krupanidhi, with

respect to Plot No. 7 admeasuring 382 sq. yards. Thereafter,

Respondent No. 3 herein obtained permission from the Special

Officer-cum-Competent Authority, under Section 26 of the Urban

Land Ceiling Act on 28.3.1994 to sell the said plot to defendant C.A. @ S.L.P. (C) No.7296 of 2006 -5-

no.2-present Appellant No.1. The sale deed by Respondent No. 3

(original Defendant No. 1) was then executed in favour of

Appellant No. 1 on 13.4.1994 who, thereafter, took possession of

the plot.

5. In order to have the said site into regular and proper shape,

appellant no.2 further purchased additional 21 sq. yards from C.

Nageswar Rao out of his plot No. 6 and sold 21 sq. yards to Smt.

A. Vijayalaxmi out of Plot No. 7 under registered sale deed dated

28.11.1994. He, thereafter, got his name mutated and started

paying tax. Encumbrance Certificate for a period of 15 years was

also obtained by him between 28.8.1980 to 24.8.1994. Domestic

electrical connection was also obtained for the store/watchman

room from APSEB and necessary permission from Municipal

Corporation, Hyderabad to construct a house was also obtained.

6. Only when he started digging pits and constructing

store/watchman room and compound wall, the respondents tried to

dispossess Appellant No. 1 by using physical force. A police

complaint was filed by her husband-appellant no.2. Thereafter, the

present suit was filed by respondents against the appellants. C.A. @ S.L.P. (C) No.7296 of 2006 -6-

7. Other allottees of the plots of the aforesaid Housing Society

had constructed their respective buildings/apartments in the plot so

purchased by them. Thus, the averments made by respondents in

their plaint were denied in toto.

8. After framing of issues, parties went to trial. After detailed

consideration of both oral and documentary evidence, Trial Court

vide judgment dated 01.12.1999 recorded a finding in favour of the

respondents and decreed the suit granting temporary injunction,

restraining appellants from interfering with peaceful possession

and enjoyment of the plaintiffs over the Suit Schedule Property.

9. Aggrieved by the said judgment and decree passed by the

Trial Court, the appellants-defendants herein were constrained to

file an appeal before the lower appellate Court challenging the

same on variety of grounds.

10.The lower appellate Court vide judgment and decree dated

14.3.2002 allowed the same and the respondents' suit was

dismissed.

11. Questioning the same and against quashment of judgment

and decree of the Trial Court, respondents had preferred a second

appeal under Section 100 of the Code of Civil Procedure (CPC). In C.A. @ S.L.P. (C) No.7296 of 2006 -7-

the said second appeal the following two questions of law were

formulated :

"i) Whether the lower appellate Court was right in reversing the entire judgment of the Trial Court though the interest of the defendants was only in respect of 382 sq. yards of land purported to be in Survey No. 105/1 of Khairtabad village, Hyderabad.

ii) Whether the lower appellate Court was right in reversing the findings of the trial Court and whether the same is not contrary to the evidence on record and amounts to a perverse finding."

12. Learned Single Judge of the High Court came to the

conclusion that the Suit Schedule Property is found to be in

exclusive possession of respondents and the same is clearly

identifiable. The appellants herein cannot pretend ignorance and

say that they are not bound by the orders of the Court passed

against M/s. Anand Jyothi Cooperative Housing Society because

they have purchased this property from the said society by

registered sale deed. Looking to the Commissioner's and Survey

Report, it has been found that the area of 382 sq. yards claimed by

respondents does not fall within the area said to have been C.A. @ S.L.P. (C) No.7296 of 2006 -8-

purchased by appellants herein. A categorical finding has been

recorded by the High Court that Commissioner's Report would

show that there is a distance of more than = Km between the lands

in Survey No. 96 and land in Survey No. 105.

13. In fact, it has been found that the land admeasuring 382 sq.

yards, subject matter of the suit is not located within Survey No.

94, 95, 96 of village Khairtabad, instead it is part of lands

belonging to Hazmatunnisa Begum of Khairtabad, which has been

purchased by the appellants. Thus, they could not have been

restrained from entering their own lands.

14. Learned Single Judge of the High Court entirely agreed with

the finding recorded by the Trial Court with regard to possession of

the appellants on 382 sq. yards of land. It further agreed that

possession being sine qua non for grant of permanent injunction,

the Trial Court had committed no error in granting the same. After

discussing the matter threadbare, the High Court by the impugned

judgment and order, set aside the judgment and decree of the first

appellate Court and restored that of Trial Court, whereby and

whereunder the respondents' suit was decreed. Hence, this Appeal. C.A. @ S.L.P. (C) No.7296 of 2006 -9-

15. It is pertinent to mention that a suit being O.S. No.1846 of

1982 was filed by Anand Jyothi Co-operative Housing Society for

perpetual injunction restraining Gramodyog Co-operative Housing

Society from interfering with 6090 sq.yards in survey no.105/1,

which was dismissed for default on 12.7.1985.

16. Learned Senior counsel for appellants, Mr. M.N. Rao, tried

to advance before us some questions of law with regard to Order 9

Rule IX of the CPC, which were vehemently opposed by learned

counsel for respondents on the ground, that this having not been

taken earlier cannot be permitted to be taken up for the first time at

this stage.

17. We have no doubt in our mind that at any point of time

earlier it was neither raised nor argued or hammered at the stage of

Trial Court, first appellate Court and High Court, thus it cannot be

permitted to be taken up for consideration for the first time. Thus,

we refrain from taking cognizance of those grounds which are

sought to be taken now for the first time.

18. Learned senior counsel for the appellants has also

strenuously submitted before us that as per O.9 R.IX, CPC,

dismissal of earlier Suit filed before Junior Civil Judge, City Civil C.A. @ S.L.P. (C) No.7296 of 2006

- 10 -

Court, Hyderabad against Gramodyog Cooperative Housing

Society for injunction would create a bar against the present

respondents/ plaintiffs to file fresh suit.

19. To put forth contentions further in this regard, learned

counsel for appellants have placed reliance on a judgment reported

in AIR 1949 Madras 882 titled, Yellapragada Gopalkrishnamurthi

v. Pettu Poda Madireddi & Ors. and full Bench opinion of Punjab

and Haryana High Court reported in AIR 1985 P&H 135 titled

Gajpat Singh v. Sudhan (Died) Legal by L.Rs Hukam Chand.

20. We are afraid and as mentioned hereinabove that it would

neither be proper nor permissible to raise this ground for the first

time in this appeal before this Court. Admittedly, this ground was

never taken by the appellants either before the Trial Court or First

Appellate Court or in Second appeal in the High Court and has

been tried to be advanced for the first time, which in our opinion is

impermissible.

21. It is not necessary to deal this aspect of the matter as it

stands concluded by various judgments of this Court, viz., (1)

Municipal Corporation of Greater Mumbai & Anr. v. Kamla Mills

Ltd., (2003) 6 SCC 315 : AIR 2003 SC 2998; (2) Panchugopal C.A. @ S.L.P. (C) No.7296 of 2006

- 11 -

Barua & Ors. v. Umesh Chandra Goswami & Ors. (1997) 4 SCC

713 : AIR 1997 SC 1041; (3) Nityananda Kar & Anr. v. State of

Orissa & Ors. 1991 Supp (2) SCC 516; and (4) Ishwar Das Jain

(Dead) Through LRs v. Sohan Lal (Dead) by LRs (2000) 1 SCC

434 : AIR 2000 SC 426.

22. Apart from the above, other grounds advanced before us

have already been answered by an elaborate and detailed order

passed by High Court in the respondents' second appeal. Despite

arguing for quite some time learned counsel for appellants could

not point out any illegality or perversity to us in the impugned

judgment and decree. The Appeal being devoid of merits and

substance is hereby dismissed with costs throughout.

23. Counsels' fee Rs. 5, 000/-.

...........................................J. [B. SUDERSHAN REDDY]

............................................

J. [DEEPAK VERMA]

New Delhi. December 18, 2009.