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2009 Supreme(SC) 1857
2009(8) Supreme 573
SUPREME COURT OF INDIA
B. Sudershan Reddy and Deepak Verma, JJ.
G. Suryakumari & Anr. — Appellants
versus
B. Chandramouli & Ors. — Respondents
Civil Appeal No. 8476 of 2009
[Arising out of SLP(C) No.7296 of 2006]
Decided on : 18-12-2009
IMPORTANT POINT
Ground which at any point of time earlier was neither raised nor argued or heard at the stage of Trial Court, first appellate Court and High Court, cannot be permitted to be taken up for consideration for the first time.
Headnote:Code of Civil Procedure,1908 – Order 9 Rule IX – Respondents plaintiffs filed Suit against appellants/ defendants, for relief of perpetual injunction restraining them from interfering in any manner into their peaceful possession and enjoyment over the Suit Schedule Property – After detailed consideration of both oral and documentary evidence, Trial Court recorded a finding in favour of 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 – On appeal appellate Court dismissed respondents’ suit – Second appeal –. After discussing the matter threadbare, High Court by impugned judgment and order, set aside the judgment and decree of first appellate Court and restored that of Trial Court, whereby and where under the respondents’ suit was decreed – Appeal – Plea of appellants that as per O.9 R.IX, CPC, dismissal of earlier Suit filed before Junior Civil Judge, City Civil Court, Hyderabad against Gramodyog Cooperative Housing Society for injunction would create a bar against respondents/ plaintiffs to file fresh suit – Held 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 is impermissible – No illegality or perversity found in the impugned judgment and decree of High Court – Appeal being devoid of merits and substance dismissed. (Paras 16 to 23)
Facts of the Case :
Respondents plaintiffs herein in the instant case filed Suit against appellants/ defendants, for relief of perpetual injunction restraining them from interfering in any manner into their peaceful possession and enjoyment over the Suit Schedule Property.After detailed consideration of both oral and documentary evidence, Trial Court recorded a finding in favour of 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. On appeal appellate Court dismissed respondents’ suit . After discussing the matter threadbare, High Court by impugned judgment and order in second appeal set aside the judgment and decree of first appellate Court and restored that of Trial Court, whereby and whereunder the respondents’ suit was decreed.
2. Present appeal has been filed against said order.
Findings of the Court :
Plea of appellants that as per O.9 R.IX, CPC, dismissal of earlier Suit filed before Junior Civil Judge, City Civil Court, Hyderabad against Gramodyog Cooperative Housing Society for injunction would create a bar against respondents/ plaintiffs to file fresh suit. Held 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 is impermissible. No illegality or perversity was found in the impugned judgment and decree of High Court. Appeal being devoid of merits and substance was dismissed .
Result : Appeal dismissed
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 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. 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.
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
