JUDGMENT
P.S. Narayana, J.
1. Heard Sri Nazeer Khan representing the appellant and Sri Neelakanta Reddy representing Sri Ravikiran Rao the Counsel representing the first respondent.
2. The second appeal is preferred by the second defendant in the suit being aggrieved of the judgments and decrees made by the Courts below. The first respondent in the second appeal, as plaintiff, instituted a suit O.S. No. 11 of 1983 on the file of District Munsif, Adilabad for declaration and recovery of possession and for mandatory injunction to remove the huts specified and for costs of the suit,
3. The Court of first instance, after recording evidence, had arrived at a conclusion that the plaintiff proved his title to the suit property and hence he is entitled for the reliefs prayed for in the suit. Aggrieved by the same, the second defendant alone had preferred appeal since the first defendant did not contest the suit at all.
4. The appeal preferred in A.S. No. 20 of 1989 on the file of District Judge, Adilabad was also dismissed by the judgment and decree dated 7-7-1992 and aggrieved by the same, the present second appeal is preferred.
5. First respondent is the plaintiff and the second respondent is shown only as a proforma party. The first defendant was set ex parte in the Court of first instance itself
6. Sri Nazeer Khan, the learned Counsel representing the appellant had stated that the plaint schedule property is within the municipal limits of Adilabad town and when the respective pleadings of the parties clearly go to show the activity of Land Grabbing, Civil Court should have transferred the said suit to the Land Grabbing Tribunal under the Provisions of the A.P. Land Grabbing (Prohibition) Act, 1982 and the rules framed there under and in this view of the matter, this is the only substantial question of law which would arise for consideration in the present second appeal. The learned Counsel also had drawn attention of this Court to the definitions under the A.P. Land Grabbing Prohibition Act, 1982 (hereinafter, in short, referred as ‘the Act’ for the purpose of convenience) and submitted that whether specific objection is taken in this regard or not, it is the duty of the Court to transfer a proceeding. The Counsel in all fairness submitted, except this question no other question can be canvassed in the present second appeal.
7. Per contra Sri Neelakanta Reddy representing Sri Ravikiran Rao, the Counsel for the first respondent – plaintiff had submitted that in the light of the nature of the suit filed for declaration of title, recovery of possession and for mandatory injunction, the Civil Court alone would have jurisdiction and the mere fact that incidentally, some allegations had been made in relation to the illegal construction of the huts, by itself, it cannot be said that the provisions of the Act are attracted and hence automatically such a suit should have been transferred to the concerned Land Grabbing Tribunal. The learned Counsel also in the alternative would maintain that even otherwise an objection of this nature should have been taken at the earliest point of time, though not in the Court of first instance, at least before appellate Court and in such circumstances, it should be taken that the said ground, if any, available to the appellant should be deemed to have been waived and such objection cannot be raised as a surprise at the second appellate stage, since it would amount to putting the first respondent-plaintiff on notice of ground which had not been taken at all by surprise and hence his rights would be prejudiced by permitting such a ground to be urged at the stage of second appeal. The Counsel also contended that even otherwise the question whether the provisions of the Act are applicable especially taking into consideration, the date of the institution of the suit also may be relevant and may have to be examined. Even otherwise it was submitted that the land grabbing activity, as such, always necessarily need not be said to be a pure question of law, but the same depends on several factual aspects, which cannot be canvassed at the stage of second appeal.
8. Perused the findings recorded by the Court of first instance and also the appellate Court. The first respondent herein, who is the plaintiff- K. Gangareddy filed the suit O.S. No. 11 of 1983 on the file of District Munsif, Adilabad for declaration of title to the plaint schedule property and for possession as well as for mandatory injunction. It was pleaded by the plaintiff as hereunder:
“The plaintiff is the absolute owner and possessor of the plot bearing No. 14, C. Class admeasuring 50′ X 100′ situated at Bokkalguda-1 (Shantinagar) locality of Adilabad Town. The plaintiff has purchased this plot in 13th November, 1981 through a registered sale deed bearing No. 1209/81 from Smt. Dendanaik Sarojini Bai, W/o Venkat Rao. The topography of above plot is shown in the appended map, enclosed with the plaint, which may be treated as pleadings. The plaintiff has applied for maintain to the Commissioner, Adilabad Municipality, and the same was sanctioned on 19-4-1982 vide proceedings No. A-1/4392/82. The plaintiff has also paid the Municipal tax of the said plot on the same day. The plaintiff applied for construction of shops and compound wall, which was granted in proceeding No. A/G1/114/191/1982 under permit No. 2314 on 14-4-1982, by Commissioner and special Officer, Municipal Council, Adilabad. The plaintiff has started the work of the basement for raising compound wall around the said plot but could not proceed with the construction due to commencement of farm work and rainy season. On 2-4-1982 Defendant No. 1 without any semblance of right, illegally encroached the Northern portion extent 20′ X 50′ of the said plot with a mala fide intention to grab the said portion, and erected a skelton hut, covered the sides with tattles and laid Bangalore tiled roof on the said hut. The Defendant No. 2 also with the association of Defendant No. 2 stealthily right erected a shed on the eastern side of the said portion on 24-3-1983. The plaintiff has been demanding the defendants to remove their material and to handover the vacant possession of said portion but they have been refusing, and obstructing the construction work of the plaintiff. The above facts constitute the cause of action, for the suit, and it arose firstly on 22nd April, 1982 and lastly on 24-3-1983 when the defendants encroached the said portion and commenced illegal construction of huts. They are liable to be ejected from the said portion.”
9. A written statement was filed denying the allegations. It was further pleaded that the plaintiff did not mention the father’s name of the first defendant. As such, the defendants gave the father’s name of D1 viz., Khan Mohammad. It was also pleaded as hereunder:
“The real facts are that the number of the suit plot is 13 and not 14.c the extent and location shown by the plaintiff are correct but the boundaries given by him are incorrect as such the defendants are giving the correct boundaries with map, which is enclosed herewith. The plaintiff is nether the owner nor the possessor of the suit subject-matter as alleged by him. The sale deed filed is against the law hence denied. The fact is that the D-1 is the owner and possessor of the suit plot No. 13 to the extent of half i.e., 25′ X 100′ towards western side, where as the eastern side of the suit plot to the extent of half; i.e., 25′ X 100′ of D-2 and he is the owner and possessor of the same. The Defendant No. 1 was in possession of the entire suit plot about 18 years at the time of agreement for sale eastern half portion of suit plot for Rs. 4,000/-in the year 1970 to D2 as such Defendant No. 2 became owner of the half portion of the suit plot as mentioned supra and being owner is in possession of the same since more than 12 years to the knowledge of one and all. The plaintiff with a mala fide intention and without having any title over the suit plot had filed the suit with a bad intention to grab the suit plot. In respect of the Para No. 3 of the plaint, that the defendants are either the party to the proceedings of the Municipality, Adilabad nor they are aware of the said Mutation as alleged by the plaintiff. It seems that the plaintiff keeping in dark and by suppressing the real facts falsely represented the matter for mutation to the Municipality because the permission for construction was granted on 15-4-1982 without issuing any notice to any one and where as mutation was sanctioned on the same guidelines on 19-4-1982 as per the pleadings in Para No. 3 of the plaint are best known law. The contents of Para No. 4 of the plaint are best known to the plaintiff and burden of proof lies on him only. The contentions of the para No. 5 of the plaint are entirely false hence hereby denied that the Defendant No. 1; had erected the hut as shown in red colour in the map bearing its Municipal No. 1-3-26/1 in the year 1972 as his old hut was burnt and Defendant No. 2; had erected the shed in the year, 1980 the Defendant No. 1 erected the hut on Northern side in his portion whereas D-2 erected a shed on Northern side in his portion and the errection by D1 and D2 are not as mentioned by the plaintiff in the plaint, and the plaintiff given the date in his plaint to create a cause of action, which are false. Moreover that as there is no cause of action to institute a suit against the D1 and D2. As such the suit itself liable to be dismissed not only on the basis of fixing the cause of action but also on the ground that the plaintiff is not entitled; to institute a suit against the defendants as he is not having any title in the peaceful possession and enjoyment over the suit plot.”
10. On the respective pleadings, the following issues were settled:
(1) Whether the number of suit plot is 14 or whether it is 13 as averred by the defendants in the written statement ?
(2) Whether the plaintiff is the owner of the suit plot and whether defendants encroached on the suit plot ?
(3) Whether the plaintiff is entitled to recovery of possession of suit plot by evicting the defendants from the suit plot ?
(4) Whether the plaintiff is entitled for the mandatory injunction against defendants?
(5) To what relief ?
11. The evidence of P.Ws.1 to 4 and D.Ws 1 to 4 had been recorded and Exs.A1 to A6 and Exs.B1 to B5 were marked. After recording findings, the suit was decreed on 31st Day of March, 1989.
12. Aggrieved by the same, as already referred to supra, the second defendant alone preferred A.S.No. 20 of 1989 on the file of District Judge, Adilabad and the same was dismissed on 6-7-1992. From the dates of the judgments of both the Courts below, it is clear that even by the date of pronouncement of the judgment of the Court of first instance, the Act came into force. It is clear that this objection as to the jurisdiction of the Civil Court and the question that this litigation to be tried only by the Land Grabbing Tribunal under the Provisions of the Act had not been taken at all. D.W-1 is the second defendant in the suit and P.W-1 is the plaintiff. P.W-1 is well supported by the evidence of P.Ws.2 to 4 and apart from D.W-1, D.Ws.2 to 4 were examined. The evidence of D.W.3 is of no help to the case of the appellant. Ex.A1 is the sale deed dated 17-7-1986, Ex.A2 is the Mutation certificate by Municipality dated 17-7-1986, Ex.A3 is the Receipt of Property Tax for the year 1981-82 dated 17-7-1986, Ex.A4 is the permission for construction, Ex.A5 is the Sanctioned map for construction issued by Commissioner, Municipality, Ex.A6 is the permission for construction issued by Commissioner, Municipality. Likewise Exs.B1 and B2 are the Maps, Exs.B3 is the agreement of sale, dated 12-4-1982, Ex.B4 is the objection by defendant, dated 14-7-1988, Ex.B5 is the Certificate by the Municipality for property tax. Clear findings had been recorded relating to the title of the plaintiff concurrently by the Courts below and since the other reliefs flow from the main relief, the other reliefs had also been granted. The same had been assailed on the ground of want of jurisdiction of the Civil Court and this question is raised for the first time in the second appeal. It is needless to say that no such plea was taken at least during pendency of the suit, nor the same was raised as a ground of appeal at the appellate stage. Hence in the light of these facts and also in view of the fact that necessarily it cannot be said to be a pure question of law, such question deserves to be rejected. The land grabbing activity would depend upon established factual aspects as well. A party who had not urged the same in the Courts below, though he had ample opportunity to raise such ground, on failure to raise such a ground at the earliest point of time, cannot be permitted to raise such a ground at the second appellate stage which would definitely be detrimental to the legal rights, which had accrued in favour of the first respondent/plaintiff already. In my considered opinion, such a course is impermissible in law. Hence I am not inclined to entertain and permit the appellant to raise such ground for the first time at the second appellate stage. Since no other points have been urged, I do not see any reason to interfere with the concurrent factual findings recorded by both the Courts below. Accordingly, the said findings are hereby confirmed.
13. The second appeal shall stand dismissed. No costs.