Supreme Court of India
G. SURYAKUMARI & ANR.versusB. CHANDRAMOULI & ORS.
- Citation
- 2009 INSC 1322
- Decided
- 18 December 2009
- Disposal
- Dismissed
- Bench
- B SUDERSHAN REDDY
Holding
A ground not raised in earlier proceedings cannot be considered for the first time, and the appeal is dismissed.
Summary
The plaintiffs, G. Suryakumari and others, sued B. Chandramouli and others for a perpetual injunction to prevent interference with their possession of a 1,200‑sq‑yard plot purchased from Gramodyog Cooperative Housing Society. The defendants claimed ownership of a 382‑sq‑yard portion of the same land, alleging purchase from a different cooperative society. The trial court granted the injunction in favour of the plaintiffs; the first appellate court reversed this decision, but the High Court restored the trial court decree, holding that the defendants were not in possession of the disputed area and could not claim ignorance of an earlier order against the cooperative society. The defendants appealed to the Supreme Court, raising a new ground under Order 9 Rule 9 of the CPC that a prior dismissal of a suit against the cooperative society barred a fresh suit. The Supreme Court held that a ground not raised in earlier proceedings cannot be taken up for the first time and dismissed the appeal with costs.
Issues considered
- Whether Order 9 Rule 9 of the CPC bars the filing of a fresh suit after an earlier suit against the cooperative society was dismissed.
- Whether the High Court was correct in restoring the trial court's decree granting a perpetual injunction.
Legislation cited
- Code of Civil Procedure, 1908s. Order 9 Rule 9
Subjects
perpetual injunctionpossessioncooperative housing societyOrder 9 Rule 9 CPCfresh suitprocedural lawproperty disputeappeal dismissed
Judgment
[2009] 16 (ADDL.) S.C.R. 758
A G. SURYAKUMARI & ANR.
v.
B. CHANDRAMOULI & ORS.
(Civil Appeal No. 8476 of 2009)
DECEMBER 18, 2009
B
[B. SUDERSHAN REDDY AND DEEPAK VERMA, JJ.] ·-
Suit - For perpetual injunction restraining the defendants
from interfering with peaceful possession of suit schedule
c property - Plaintiff as well as defendants claiming to be lawful
purchasers of the suit property from two different co-operative
Housing Societies - Trial Court decreed the suit - First
appellate court dismissed the same - High Court, in second
appeal decreed the suit holding that the plaintiff was in
D possession of the suit property; that the area claimed by the
plaintiff did not fall within the area said to have been
purchased by the defendants; and that the defendants could
not pretend ignorance from the order against the co-operative
society, from whom they had purchased the property - In
E appeal to this court, defendant taking plea that in view of 0.9
r.9 CPC, after order of dismissal of the earlier suit filed by the
society, plaintiff barred from filing fresh suit - Held: The ground ,
on the basis of 0. 9 r. 9 CPC since raised before Supreme
Court for the first time, cannot be permitted to be raised -
F Finding of High Court decreeing the suit, upheld - Code of
Civil Procedure, 1908- 0. 9 r. 9- Practice and Procedure -
New plea - Raising of.
Yellapragada Gopalkrishnamurthi v. Pettu Poda
-
. #-
G Madireddi and Ors. AIR 1949 Madras 882; Gajpat Singh v.
Sudhan (Died) by LRs. Hukum Chand AIR 1985 P&H 135,
referred to
758
H
G. SURYAKUMARI & ANR. v. 8. CHANDRAMOULI & 759
ORS.
Municipal Corporation of Greater Mumbai and Anr. v. A
Kam/a Mills Ltd. (2003) 6 .sec 315; Panchugopal Barua and
Ors. v. Umesh Chandra Goswami and Ors. (1997) 4 SCC 713;
Nityananda Kar and Anr. v. State of Orissa and Ors. 1991
Supp (2) SCC 516; /shwar Das Jain (Dead) Thr. LRs. v.
Sohan Lal (Dead) by LRs. (2000) 1 SCC 434, relied on. B
Case Law Reference:
AIR 1949 Madras 882 Referred to. Para 19
AIR 1985 P&H 135 Referred to. Para 19 c
(2003) 6 sec 315 Relied on Para 21
(1997) 4 sec 113 Relied on Para 21
1991 Supp (2) sec 516 Relied on Para 21
D
(2000) 1 sec 434 Relied on Para 21
CIVIL AP PELLATE JURISDICTION : Civil Appeal No.
8476 of 2009.
E
From the Judgment and Order dated 20.2.2006 of the High
Court of Judicature of Andhra Pradesh at Hyderabad in Second
Appeal No. 541 of 2002.
M.N. Rao, Promila for the 'Appellant Petitioners.
F
H.S. Guru Raja Rao, G. Seshagiri Rao, Sridhar Potaraju
~ and S. Thananjayan for the Respondents.
The Judgment of the Court was delivered by
G
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
H
760 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A 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,
B 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.
c 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
D 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
E 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
1
raised boundary walls and invested huge amounts of money for
F 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/~efendants without any right
G 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. An.and Jyothi Cooperative Housing
Society. The respondents with great difficulty could resist illegal
acts of encroachment by the appellants and lodged an FIR in
H
G. SURYAKUMARI & ANR. v. B. CHANDRAMOULI & 761
ORS. [DEEPAK VERMA, J.]
this regard with the concerned Police Station but police did not A
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 B
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
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 D
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
Mis. Anand Jyothi Cooperative Housing Society had purchased
4,990 sq. yards under registered sale deed dated 8.5.1970 E
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 F
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 G
of the Urban Land Ceiling Act on 28.3.1994 to sell the said plot
to defendant 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,
H
762 SUPREME COURT REPORTS [2009] 16 (ADDL) S.C.R.
A 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.
B 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
c 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
D
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.
7. Other allottees of the plots of the aforesaid Housing
E 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 1
F 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, restraini~g appellants from interfering with
peaceful possession and enjoyment of the plaintiffs over the Suit
G 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
H challenging the same on variety of grounds.
G. SURYAKUMARI & ANR. v. B. CHANDRAMOULI & 763
ORS. [DEEPAK VERMA, J.]
10. The lower appellate Court vide judgment and decree A
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 B
preferred a second appeal under Section 100 of the Code of
Civil Procedure (CPC). In 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
c
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 D
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 E
conclusion ttlat 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 F
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 purchased by appellants G
--- i 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 Y2 Km between' the lands in Survey No.
96 and land in Survey No. 105.
H
764 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A 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
-
B 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
c 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
D restored that of Trial Court, whereby and whereunder the
respondents' suit was decreed. Hence, this Appeal.
15. It is pertinent to mention that a suit being O.S. No.1846
of 1982 was filed by Anand Jyothi Co-operative Housing
E 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.
I
16. Learned Senior counsel for appellants, Mr. M.N. Rao,
F 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.
G
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
H
G SURYAKUMARI & ANR. v. B. CHANDRAMOULI & 765
ORS. [DEEPAK VERMA, J.]
t
first time. Thus, we refrain from taking cognizance of those A
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 0.9 R.IX, CPC,
dismissal of earlier Suit filed before Junior Civil Judge, City Civil B
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
c
counsel for appellants have placed reliance on a judgment
reported in AIR 1949 Madras 882 titled, Ye/lapragada
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 D
! 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 E
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 F
it stands concluded by various judgments of this Court, viz., (1)
·' Municipal Corporation of Greater Mumbai & Anr. v. Kam/a.
Mills Ltd., (2003) 6 sec 315 : AIR 2003 SC 2998; (2)
Panchugopa/ Barua & Ors. v. Umesh Chandra Goswami &
,- \ Ors. (1997) 4 SCC 713 : AIR 1997 SC 1041; (3) Nityananda G
Kar & Anr. v. State of Orissa & Ors. 1991 Supp (2) SCC 516;
and (4) lshwar 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 H
766 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A 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
-
B devoid of merits and substance is hereby dismissed with costs
throughout.
23. Counsels' fee Rs. 5,000/-.
K.K.T. Appeal dismissed.
f
,'
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "perpetual injunction"Sign in to search