Kerala High Court
Pramod.V vs Vimala.V on 14 November, 2024
RSA NO. 219 OF 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946
RSA NO. 219 OF 2024
AGAINST THE JUDGMENT&DECREE DATED 31.01.2024 IN AS NO.53 OF 2022
OF ADDITIONAL SUB COURT, THALASSERY ARISING OUT OF THE JUDGMENT&DECREE
DATED 21.07.2022 IN OS NO.116 OF 2020 OF MUNSIFF COURT, THALASSERY
APPELLANT/APPELLANT/DEFENDANT:
PRAMOD.V
AGED 56 YEARS
S/O. DEVU, COOLI WORKER, RESIDING AT CHEEPILATT HOUSE,
KADAMBOOR VILLAGE, EDAKKAD P.O, KANNUR DISTRICT., PIN -
670663
BY ADV R.SURENDRAN
RESPONDENT/RESPONDENT/PLAINTIFF:
VIMALA.V
AGED 69 YEARS
D/O.CHIRUTHA, NO OCCUPATION, RESIDING AT 'SAI NIVAS',
MOUVANCHERI, P.O. PACHAPOYIKA, KOTTAYAM VILLAGE, KANNUR
DISTRICT., PIN - 670643
BY ADV P.P.RAMACHANDRAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2024,
THE COURT ON 14.11.2024, DELIVERED THE FOLLOWING:
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CR
JUDGMENT
1. This Regular Second Appeal is of the year 2024. When this
matter came up before this Court, the learned counsel for the
respondent pressed for an early hearing, stating that the
respondent is an aged lady who is in emergent requirement of
the residential building in the plaint schedule property and that
though she obtained favourable orders from the Maintenance
Tribunal directing the defendant to vacate the premises, the
same was set aside by this Court in a Writ Petition on technical
grounds directing the parties to work out the remedies in this
proceedings. The Counsel for the respondent also submitted
that he is ready for final hearing. Since the Trial Court records
were available, this Regular Second Appeal is heard on a
priority basis.
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2. The defendant in O.S.No.116/2020 on the files of the Munsiff's
Court, Thalassery, is the appellant. The respondent/plaintiff filed
the suit for mandatory injunction, prohibitory injunction, and
recovery of damages. The Trial Court decreed the suit granting
mandatory injunction and prohibitory injunction and denying the
recovery of damages. The defendant filed A.S.No.53/2022
before the First Appellate Court, and the First Appellate Court
dismissed the Appeal, and hence this Regular Second Appeal
is filed.
3. This Court admitted this Appeal on the following substantial
question of law:
When the plaintiff specifically pleaded that the subject
matter of the suit was the Tharawad property of her mother
and the defendant was born prior to the commencement
of Hindu Joint Family System Abolition Act to another
female member of the Tharawad, can the plaintiff maintain
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a suit for a mandatory injunction to vacate the property
against such member of the joint family where he is
admittedly a co-owner?
4. The plaint schedule property has an extent of 16 cents, and the
residential building No.9/519 therein. The suit was filed seeking
a mandatory injunction against the defendant to vacate the
house in the plaint schedule property, seeking a prohibitory
injunction restraining the defendant and his men from
trespassing into the plaint schedule property and directing the
defendant to pay damages at the rate of Rs.3,000/- per month
to the plaintiff from 15.12.2019.
5. As per the Plaint allegations the plaint schedule property was
the Tharawad property of plaintiff's mother Chirutha and the
Tharawad property was partitioned as per Ext.A1 Registered
Partition Deed dated 30.01.1964. The plaint schedule property
with larger extent was allotted to the share of the plaintiff's
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mother Chirutha and her sister Devu. Chirutha and Devu
partitioned the property as per Ext.A2 Partition Deed dated
20.08.1980, in which 16 cents was allotted to the share of
Chirutha, and 16 cents on the western side was allotted to Devu.
There was an old small house which was in a dilapidated
condition and the said house was not included in the partition.
Both Chirutha and Devu decided to keep the house structure as
common for the purpose to continue their residence till
completion of their separate houses in their separate shares.
Both constructed houses in their respective shares and started
living separately. The old common house was neglected by both
and fell down due to old-age. After the death of Chirutha, the
plaint schedule property and house therein were inherited by
her children, Prasanna and the plaintiff. The plaint schedule
property and the house were managed by the plaintiff for and
on behalf of Prasanna also. After the death of Chirutha, there
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was nobody to reside in the house, and the house was closed
for a long period. The defendant is the son of Devu. On account
of a clash in his family, the defendant requested the plaintiff for
permission to stay in the house temporarily until he found a
separate resident of his own. The plaintiff permitted the
defendant to stay in the house with his wife and children without
paying any kind of consideration but on condition that he shall
vacate the premises as and when demanded by the plaintiff or
her sister Prasanna. The defendant is only a permissive
occupier. The plaintiff and her sister Prasanna decided to
dispose of the property on account of their pressing financial
needs. When the plaintiff demanded the defendant to vacate the
premises on 21.11.2019, initially, the defendant agreed to
vacate the premises by the end of November 2019, but he
delayed shifting, and the plaintiff again requested the defendant
to vacate the premises on 15.12.2019, but he continued
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occupation refusing to vacate the premises. The occupation of
the defendant is only permissive which was terminated by the
plaintiff on 15.12.2019. Since the occupation of the defendant is
that of a trespasser, the defendant is liable to pay damages to
the plaintiff at the rate of Rs.3,000/- per month, which is
equivalent to the monthly rent of a house near the scheduled
premises.
6. The suit prayers were resisted by the defendant, contending
inter alia that the defendant was born and brought up in the
house situated in the entire property. Though the plaint schedule
property was allotted to the share of Chirutha, the defendant
was continuing his residence in the house situated in the
property even before partition and thereafter. The house named
Cheeppilat was not included in the partition nor allotted to
Chirutha. There is no truth in saying that a new house was
constructed by Chirutha in the plot allotted to her, neglecting the
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old house. The old house, which was not included in the
Partition deed, was repaired and renovated using the funds of
the defendant, and he continued his residence in the house with
his family. The allegation that after the death of Chirutha, the
plaint schedule property and the house therein inherited by her
children plaintiff and Prasanna is not correct. None of them are
in the possession of the house situated in the plaint schedule
property and appurtenant land of 5 cents which is in possession
and occupation of the defendant. The said 5 cents is situated
with definite boundaries on all sides. The daughters of Chirutha
are not having rights or possession over the entire plaint
schedule property as alleged and they are having rights
excluding the 5 cents where the house is situated. The
occupation of the defendant is not permissive, but it is a matter
of right. Neither the plaintiff nor her sister has any right or
possession to sell the entire plaint schedule property. The house
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situated in the property and the appurtenant land measuring 5
cents, which are in occupation/ exclusive possession of the
defendant, cannot be sold away. The defendant is not a
trespasser and hence he is not liable to pay any damages to the
plaintiff or anybody. The defendant cannot be evicted from 5
cents and the house situated therein by filing the suit. Even if
anybody had any right over the said property or the house, it
has been lost by adverse possession and ouster.
7. On the side of the plaintiff, the plaintiff was examined as PW-1,
and Exts.A1 to A7 were marked. On the side of the defendant,
the defendant was examined as DW-1 and marked Exts.B1 to
B7.
8. The Trial Court decreed the suit in favour of the plaintiff, issuing
a mandatory injunction against the defendant and his men to
vacate the house in the plaint schedule property within one
month from the date of the judgment, failing which, allowing the
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plaintiff to execute the decree through the process of the court
and realize the cost from the defendant and further restraining
the defendant and their men and agents by way of permanent
prohibitory injunction from trespassing into the house and the
plaint schedule property. The Trial Court found that the plaintiff
has discharged her burden of proving that she, along with her
sister, are the exclusive owners of the plaint schedule property
and the house situated therein as the legal heirs of Chirutha;
that the defendant could not prove any exclusive right over the
property; that the defendant cannot claim the benefit of adverse
possession and ouster, as he is not a co-owner of the property
his occupation could only be termed as permissive one.
9. The defendant filed an appeal before the First Appellate Court,
and the appeal was dismissed, confirming the judgment and
decree of the Trial Court. The First Appellate Court found that
on going through Ext.A2, it is seen that there was no house in
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the property allotted to the plaintiff, and the case of the plaintiff
that Chirutha constructed a house in her property is more
probable that the plaintiff could establish her right over the plaint
schedule property on the basis of Ext.A1 and A2 along with
Exts.A3 and A4 series and that the defendant could not produce
any document other than producing some Water Bills etc. to
show his right over the house situated in the plaint schedule
property.
10. I heard the learned Counsel for the appellant, Sri.R.Surendran,
and the learned Counsel for the respondent,
Sri.P.P.Ramachandran.
11. The learned counsel for the appellant argued that the identity of
the plaint schedule property is not proved by the plaintiff. The
evidence on record indicates that the defendant has been
occupying the old house situated in one cent of the land, which
is included in item No.4 of Ext.A1 Partition Deed, which was kept
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common. The house is not situated in Item No. 1 of Ext.A1
Partition Deed, which was partitioned as per Ext.A2. The
learned counsel invited my attention to Annexure 1, produced
along with the appeal, and contended that the said Certificate
issued by the Panchayat would prove that the residential
building occupied by the defendant bearing No.9/519 has an old
age of 61 years as per the Assessment Register maintained in
Kadambur Grama Panchayat and in such case, it could not be
the residential building constructed by the plaintiff in the 16
cents allotted to her as per Ext.A2 and it could only be the
Tharawad house which was kept common in Item No.4 of
Ext.A1 having an extent of one cent. At any rate, the plaintiff
ought to have taken a commission to prove that the house is
situated in 16 cents derived by her as per Ext.A2. The plaintiff
has specifically admitted that the plaint schedule property is a
Tharawad property. In view of such specific admission in the
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plaint, the defendant has birthright over the plaint schedule
property since he was born before 01.12.1976, the date of
commencement of the Kerala Hindu Joint Family System
(Abolition) Act. There is no case for the plaintiff that the property
partitioned as per Ext.A1 among the children of Bachi is the self-
acquired property of Bachi. As such, the defendant is a co-
owner of the plaint schedule property, and hence, the plaintiff
cannot seek his eviction from the plaint schedule property. In
support of the said contention, the learned counsel relied on the
decision of this Court in Cherukunnon Shantha v.
Kallakkandy Sahadevan & Ors. [2011 2 KHC 314] in which it
is held that children born to female members of a Thavazhi till
the commencement of the Hindu Joint Family System
(Abolition) Act, 1975 are entitled to claim right in the share
allotted to their mother as thavazhy property. The learned
counsel also relied on the judgment dated 29.02.2024 of this
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Court in R.F.A.No.164/2010 to substantiate the point that the
property allotted in a partition to one of the female members is
intended to enure for the benefit of the Thavazhy. On the
strength of these decisions, the learned counsel contended that
32 cents allotted to Chirutha and Devu as per item No.1 in
Ext.A1 is intended for the benefit of the Thavazhy constituting
those two female members, and since the defendant was born
subsequent to the partition and before the Kerala Hindu Joint
Family System (Abolition) Act, the defendant became member
of the Thavazhy and on the introduction of the Kerala Hindu
Joint Family System (Abolition) Act he became one of the co-
owners of the said 32 cents of land. Learned Counsel
contended that the defendant is not a party to Ext.A2 Partition
Deed, and hence Ext.A2 is not binding on the defendant and the
plaint schedule property. The learned counsel further contended
that there is specific evidence of PW-1 that the alleged license
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was terminated in the year 1991. It is settled law that if the suit
is not filed within a reasonable time from the date of termination
of the license, the suit for mandatory injunction is not
maintainable, and the suit should have been for recovery of
possession. The learned counsel relied on the decision of this
Court in George v. John [1984 KLT 179] and the decision of
the Hon'ble Supreme Court in Joseph Severance & Ors. v.
Benny Mathew & Ors [2005 (7) SCC 667] to substantiate this
legal proposition. The learned counsel further contended that
the relief of mandatory injunction is at the discretion of the court
under Section 39 of the Specific Relief Act and the Trial Court
as well as the First Appellate Court should not have exercised
discretion in favour of the plaintiff.
12. On the other hand, the learned Counsel for the respondent
argued that none of these contentions was raised either before
the Trial Court or before the First Appellate Court. The
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contentions now raised by the appellant in the Second Appeal
are beyond the scope of pleadings in the suit. The Trial Court,
as well as the First Appellate Court, have entered concurrent
findings on facts that could not be re-agitated in a Second
Appeal. It is impermissible to raise contentions which are not
raised before the Trial Court in the Second Appeal. The
Substantial Question of law formulated at the time of admission
does not arise in the matter. The defendant had no dispute with
respect to the identity of the plaint schedule property; hence,
there was no need to take out a commission for identification.
The defendant did not claim any birthright or co-ownership right
either before the Trial Court or before the First Appellate Court.
It is specifically stated in the Plaint that the cause of action for
the suit arose on 15.12.2019, and the suit was filed on
10.03.2020, i.e., within reasonable time from the date of cause
of action, and hence, the suit for mandatory injunction is
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perfectly maintainable. The Trial Court exercised the discretion
under S 39 of the Specific Relief Act in the right perspective. As
revealed from Ext.A6, in the proceedings before the
Maintenance Tribunal, the defendant specifically submitted that
the plaintiff and her sister permitted the defendant to reside in
the house in the plaint schedule property temporarily, and he is
ready to vacate the same, that since he is not having any other
house, he requested for 4 cents of land out of the plaint
schedule property of 16 cents at the rate Rs.50,000/- and the
plaintiff and her sister agreed to give 4 cents to the defendant at
the said rate out of the plaint schedule property excluding the
portion in which the house is situated. These facts are clearly
revealed from Ext.A6 order, though the said order was set aside
by this Court in a Writ Petition on a technical ground.
13. I have considered the rival contentions.
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14. The first contention raised by the counsel for the appellant is
with regard to the identity of the plaint schedule property. The
contention of the counsel for the appellant is that the house in
which the defendant has been residing is situated in 1 cent of
land, which is kept common in item No.4 of Ext.A1 Partition
deed. The specific case of the plaintiff in the Plaint is that 32
cents of land included in item No.1 in Ext.A1 Partition Deed of
the year 1964 was allotted jointly to Chirutha and Devu, and the
said property was equally partitioned between Chirutha and
Devu as per Ext.A2 Partition deed of the year 1980 allotting
eastern 16 cents to Chirutha and western 16 cents to Devu. It is
specifically averred that the old small house, which was in
dilapidated condition, was not included in the said partition. It
clearly indicates that the pleading is that the house situated in
Item No.4 in the Ext.A1 Partition Deed, which is kept as
common, is not included in the Ext.A2 Partition deed. On a
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perusal of Ext.A2, it is specifically stated that the property is
divided, excluding the house mentioned thereunder. The house
mentioned thereunder is the house situated in Item No.4 of
Ext.A1. In Paragraph 3 of the Written Statement, the defendant
contended that he continued in the old house, which was not
included in the Partition deed, after repairing and renovating the
same using his funds. This pleading would indicate that he is
claiming that the house in which he is residing is situated in the
1 cent of land included in Item No.4 of Ext.A1. Thereafter, in
Paragraph 5 of the Written Statement the defendant has stated
that he is residing in the house situated in 5 cents with his family;
and that the daughters of Chirutha have rights excluding this 5
cents where the house is situated. Going by this pleading, he is
claiming 5 cents out of the plaint schedule property of 16 cents.
This pleading is contradictory to the earlier pleading. In the
Proof Affidavit, DW 1 has stated that the house and the land in
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which the house is situated are not included in Ext.A2 Partition.
In cross examination, he admitted that there was no house on
the property covered by Ext.A2. He admitted that there is no
house in the 16 cents allotted to Chirutha. He admitted that there
was no house in the plaint schedule property having 16 cents.
He admitted that he does not have any right in the plaint
schedule property having 16 cents. He stated that he is claiming
1 cent of land and the Tharavad house therein, which was kept
in common. He admitted that he has not kept possession of the
16 cents of land at any time. He further stated that the 5 cents
claimed by him was outside the property involved in the suit. He
admitted that the plaint schedule property belonged to the
plaintiff and her sister after the death of Chirutha. In view of the
aforesaid pleadings and evidence on the part of the defendant,
it could be seen that he has no consistent case with respect to
his claim, though the identity of the plaint schedule property is
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not seriously disputed by him. At one stage, he says he is
claiming 5 cents out of the plaint schedule property, then he
says it is outside the plaint schedule property, then he says he
is claiming 1 cent and the Tharawad house therein, which is kept
in common. He does not have a case that the plaintiff has
included the 1 cent of land and the Tharavad house therein
covered by Item No.4 of Ext.A1 in the plaint schedule property.
In view of these pleadings and evidence on the part of the
defendant, it could be concluded that the defendant did not have
any serious dispute with regard to the identity of the plaint
schedule property, having 16 cents.
15. The next contention of the counsel for the appellant is that in
view of the pleadings of the plaintiff that the plaint schedule
property is a Tharavad property, the defendant who was born
before the implementation of the Kerala Hindu Joint Family
System (Abolition) Act has a birthright over the property of 32
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cents jointly allotted to Chirutha and Devu who are the mothers
of the plaintiff and the defendant, as per Ext.A1 Partition Deed.
The defendant did not raise such a claim either before the Trial
Court or before the Appellate Court. If he had raised such a
case, he should have claimed that he is one of the co-owners of
the said 32 cents of land which includes the plaint schedule
property. As stated earlier in the Written Statement, he has
specifically admitted that the daughters of Chirutha have rights
over the plaint schedule property, excluding the 5 cents where
the house is situated. He was claiming exclusive rights over 5
cents out of the plaint schedule property. He had no case that
he had co-ownership over the said property. Though it is stated
that he is claiming the 5 cents within clear boundaries as a
matter of right, what is the basis of such right is not disclosed
either in the pleadings or in the evidence. Though he advanced
a contention that he is claiming right over 1 cent of land and the
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Tharavad house therein, which is kept as common, he does not
say how he can claim exclusive rights and how his claim is
increased to 5 cents. As stated earlier, the defendant as, DW-1
has specifically admitted that the plaint schedule property
belongs to the plaintiff and her sister after the death of Chirutha.
He specifically admitted that he does not have any right in the
plaint schedule property having 16 cents of land. At the same
time, he admits that his mother has derived 16 cents of land as
per Ext.A2, and she constructed a building therein. Thus, it is
clear that the defendant wants to see that his mother retains the
16 cents derived by her as per Ext.A2, and he wants to grab
property out of the 16 cents allotted to his mother's sister
Chirutha by raising untenable contentions. It is true that the
plaintiff has stated in the plaint that the plaint schedule property
was Tharavad property, but the defendant did not raise any
defense on the basis of such pleading of the plaintiff. Now, at
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the stage of the Second Appeal, the defendant wants to take
advantage of the vague pleading of the plaintiff, disowning all
his pleadings in his Written Statement. It is not clear whether the
property partitioned by the children of Bachi as per Ext.A1 is the
self-acquired property of Bachi. The contention of the counsel
for the appellant is that the plaintiff ought to have produced the
prior document of the year 1944 referred to in Ext.A1 to prove
that it is the self-acquired property of Bachi and not the
Tharavad property. Since the contention based on birthright and
co-ownership was raised for the first time in the Second appeal,
there was no need for the plaintiff to produce the prior Title Deed
to prove that it is the self-acquired property of Bachi. Since the
defendant did not dispute the title of Chirutha and Devu as per
Ext.A1 and Ext.A2, there was no need for the plaintiff to produce
the 1944 document, which is referred to as the prior document
of Ext.A1. Though the plaintiff has specifically stated in her Proof
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Affidavit that 66 cents, including the plaint schedule property,
was the self-acquired property of her grandmother Bachi and
the same was partitioned by her children Chirutha, Anandan,
Balan, and Devu, the said evidence was not cross-examined by
the defendant. In cross-examination, the defendant admitted
that the Tharavad property belonged to Bachi and that the
property belonged to Bachi was partitioned by the children of
Bachi in the year 1964. Ext.A6 order passed by the
Maintenance Tribunal reveals that the defendant has stated that
he has been occupying the disputed house temporarily as per
the permission given by the plaintiff and her sister and that he is
ready to vacate the same. It also reveals that he prayed for
directing the plaintiff and her sister to sell 4 cents of land @
Rs.50,000/- per cent to him as he does not have a house and
that the plaintiff agreed to give 4 cents of land at the said rate
excluding the portion in which the house is situated. On the
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basis of the said submissions of the parties, the Maintenance
Tribunal ordered the defendant to vacate the plaint schedule
property within three months and further directed the plaintiff
and her sister to sell 5 cents of vacant land to the defendant at
the rate of Rs.50,000/- per cent. The counsel for the appellant
argued that admittedly, Ext.A6 Order is set aside and it could
not be relied on by the Court and that the defendant, as DW-1,
has denied those statements in Ext.A6. True, it is seen from the
evidence of DW-1 that he deposed that that he has read Ext.A6
in which he agreed to vacate the house, but it is not correct. The
plaintiff in her Proof Affidavit has specifically stated that the
defendant appeared before the Maintenance Tribunal and
agreed that he is ready to vacate the plaint schedule property
and he requested for sale of 4 cents to him @Rs.50,000/- per
cent. The said evidence of PW-1 is not cross-examined by the
defendant. On the other hand specific suggestion was put to
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PW-1 that it is stated in the order of RDO, 4 cents of land is sold
to the defendant for Rs.2 lakhs. The aforesaid pleadings and
evidence indicate that the defendant was not claiming any co-
ownership or birthright over the plaint schedule property. He
was claiming exclusive right over 5 cents of land out of the plaint
schedule property at one stage, and at the same time, he was
claiming that he has been residing in the Tharavad house
situated in 1 cent of land, which was kept common as per item
No.4 of Ext.A1. A contention which does not have a factual
foundation could not be raised for the first time in the second
appeal. Hence, the present contention raised by the appellant
is beyond the scope of his pleadings before the Trial Court, and
it could not be raised at the second appellate stage. The
evidence of DW-1 would indicate that he wants to maintain the
allotment of property to his mother as per Ext.A2 Partition and
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wants to challenge the allotment in favour of the mother of the
plaintiff by the very same document.
16. The third contention raised by the counsel for the appellant is
that the relief of mandatory injunction being a discretionary
relief, the Trial Court should not have exercised discretion in
favour of the plaintiff. Here the pleadings and evidence would
reveal that the plaint schedule property belonged to Chirutha,
mother of the plaintiff and her sister as per Ext.A2 Partition deed
and there was no house in the plaint schedule property at the
time of executing Ext.A2 partition deed. This fact is specifically
admitted by DW-1 in his evidence. In such case, the house now
situated in the plaint schedule property could have been
constructed after Ext.A2 partition Deed of 1980. The specific
case of the plaintiff is that the defendant started residing in the
plaint schedule property since the year 2014 on a permission
given by the plaintiff. Though the defendant claimed that he was
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born and brought up in the house in which he has been residing
he could not produce any document to prove his residence
before the year 2014. He had enough opportunity to produce
documents before the Trial Court to prove the details of the
house in which he has been residing. When the defendant has
been in permissive occupation of the plaint schedule property
which is terminated by the plaintiff, the plaintiff is perfectly
justified to seek a mandatory injunction to remove the defendant
from the plaint schedule property and the Trial Court is perfectly
justified to exercise its discretion under Section 39 of the
Specific Relief Act in favour of the plaintiff.
17. The defendant has produced a Building Age Certificate dt
05.05.2024 alleged to have been issued by Kadamboor Grama
Panchayat in which it is stated that building bearing No. 519 in
Ward No.9 is 61 years old as per the Assessment Register
maintained in Kadamboor Grama Panchayat, with a prayer to
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accept the same as additional evidence under Order 41 Rule 27
CPC. The said prayer is opposed by the respondent by filing a
Counter Affidavit. A mere production of a Certificate is not
sufficient to prove the fact covered by the said Certificate. The
person who has issued the Certificate had to be examined to
prove the said Certificate. The defendant has not satisfactorily
explained the reason for non production of the said Certificate
before the Trial Court. The plaintiff did not get the opportunity to
challenge the said Certificate in evidence. The defendant stated
that he could not obtain the certificate as the building Number
was mistakenly shown in the Plaint Schedule as 19/519 instead
of 9/519. It is clear from the Property Tax Receipts produced by
the plaintiff and marked in evidence that the building number is
correctly shown as 9/519 and hence the defendant could have
identified the correct building number of the building. That apart,
since the defendant has been admittedly residing in the house
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situated in the plaint schedule property, he could not contend
that he was not aware of the actual building number of the
house. Hence the prayer for accepting Annexure I produced
along with the appeal is rejected.
18. The next contention is that the suit for mandatory injunction is
not maintainable since the suit was not filed within a reasonable
time after the termination of the license. The contention of the
learned counsel for the appellant is that the plaintiff has admitted
in his cross-examination that the permission was terminated in
the year 1991. It is true that the plaintiff as PW-1 has made such
a statement. But immediately thereafter she has stated that the
permission was withdrawn in the year 2019. It is true that PW-1
has stated that the defendant has been residing in the plaint
schedule property for the last 17 years which is contradictory to
the pleading that the defendant started occupying the plaint
schedule property since the year 2014. The evidence of PW-1
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is to read as a whole and in such case, the only conclusion
possible is that those contradictory statements are made by the
plaintiff by mistake and the same are not material
contradictions. It is clear from Ext.A6 and the evidence of PW-1
that in the proceedings before the Maintenance Tribunal, the
defendant has specifically admitted that he has resided
temporarily in the plaint schedule property. This contention was
also not raised either before the Trial Court or before the
Appellate Court. In the decision of the Hon'ble Supreme Court
in Joseph Severance (supra) itself the Hon'ble Supreme Court
has specifically found that the defendant did not specifically
raise any plea that the time taken was unreasonable; that no
evidence was led; that no specific plea was raised before the
Trial Court or the First Appellate Court; and that the question of
reasonable time was to be factually adjudicated and the same
could not be raised for the first time in Second Appeal. In the
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present case also the defendant had no case either before the
Trial Court or before the First Appellate Court that the suit for
mandatory injunction is not maintainable or that the suit was not
filed within reasonable time after termination of the permission.
It is not the length of time that determines whether the time is
reasonable or not. Whether the time taken for filing the suit for
mandatory injunction is reasonable or not would depend upon
the facts and circumstances of each case and it is a question to
be adjudicated by the Trial Court. Only if such contention is
raised before the Trial Court, the opposite party will be able to
answer the said contention and the Trial Court would be able to
adjudicate the said contention. Hence the contention that the
suit for mandatory injunction is not maintainable as it was not
filed within a reasonable period from 1991 is also not
sustainable.
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19. The parties to the case contested the suit adducing evidence in
the light of the pleadings raised by both sides. The contentions
now raised by the appellant did not find a place in his pleadings.
The parties, including the defendant, did not adduce any
evidence in the suit with respect to the new contentions raised
in this appeal. The parties did not join on the issues based on
the new contentions now advanced. The Trial Court had no
occasion to frame the issues in the suit with respect to the new
contentions raised by the appellant in this appeal. This Court
formulates a Substantial Question of Law at the time of
admission, considering the impugned judgments and the
pleadings in the Memorandum of Appeal. This Court does not
get the opportunity to consider the pleadings and evidence in
the suit. Hence, the right is given to the respondent under Sub-
Section 5 of Section 100 CPC to argue that the case does not
involve such a question. It enables this Court at the time of the
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final hearing of the Second Appeal to consider whether the case
involves the substantial question of law formulated on
admission. A contention which is diametrically opposite to the
contention advanced before the Trial Court could not be raised
in the Second Appeal. A contention which is beyond the
pleadings of the appellant before the Trial Court could not be
raised in the Second Appeal. Under these circumstances, the
Substantial Question of Law formulated by this Court at the time
of admission does not arise in the case.
20. I do not find any error or illegality in the judgments and Decrees
of the Trial Court as well as the First Appellate Court. This
Regular Second Appeal is dismissed with costs.
Sd/-
M.A. ABDUL HAKHIM
JUDGE
jma
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PETITIONER ANNEXURES
Annexure 1 AGE CERTIFICATE DATED 5-5-2024, IN RESPECT OF THE
HOUSE BEARING NO.9/519 OF KADAMBOOR GRAMA
PANCHAYAT
