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2024 DIGILAW 1486 (KER)

Pramod. V v. Vimala. V

2024-11-14

M.A.ABDUL HAKHIM

body2024
JUDGMENT : M.A. Abdul Hakhim, J. 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. 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 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. 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 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 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 occupation refusing to vacate the premises. The occupation of the defendant is only permissive which was terminated by the plaintiff on 15.12.2019. 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 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 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. 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 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 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. 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 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 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. 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 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 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 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 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 perfectly maintainable. The Trial Court exercised the discretion under S 39 of the Specific Relief Act in the right perspective. 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. 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 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. 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 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 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. 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 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 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. Though he advanced a contention that he is claiming right over 1 cent of land and the 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 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. 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 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 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. 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 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 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. 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 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 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. 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 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 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 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. 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 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. 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.