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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

J U D G M E N T

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

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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.

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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.

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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

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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.

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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

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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

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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 ½ 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.

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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

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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

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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.