KADERKUNHI BEARY Vs. KADRE BEARY

JUDGEMENT

(1.) Defendants 2 to 9 are the appellants. The Second Appeal is from a final decree in a suit for partition and redemption of plaintiff's 3/56 share. In passing the final decree the appellants' claim for protection under S.4A(1)(a) and (b) read with S.13 of Act of 1964 was rejected by the Trial Court as well as the first appellate court on the sole ground that in S. A. No. 1044 of 1968 filed against the preliminary decree the appellants' attempt to raise this ground was rejected by this Court by the following order:--

(2.) The inclusion of Act 35 of 1969 in the Ninth Schedule does not give a fresh right to the appellants to urge their claim for benefit over again. The effect of inclusion of an enactment in the Ninth Schedule to the Constitution was considered by the Supreme Court in L. Jagannath v. Authorised Officer L. R. Madurai ( AIR 1972 SC 425 ). In Para.23 it is observed thus:--

(3.) Then the question is how far the amendment of Sub-s.(3) of S.108 with retrospective effect from 1-1-1970 will alter the position. This amendment came after the decision in the second appeal. Under the amended sub-section if any person claims a benefit under Act 35 of 1969, the court shall decide such claim in the pending proceeding itself. This provision does not require that the claim for benefit should be raised and got decided in the second appeal itself at the risk of a bar to urge it at a subsequent stage. A party is allowed to claim the benefit. If there is a decision on the merits of that claim that will conclude him finally. But, a party who is not allowed to urge it cannot be debarred from urging it at a subsequent stage of the same proceeding. The respondents' counsel stated that the order refusing amendment of the appeal memorandum amounts to a decision on the merits of the claim for the benefit. I do not think so. With respect, whatever else it may amount to this does not amount to an adjudication of the merits of the claim. The reason given in the order seems to be totally unconnected with the adjudication of the merits of the claim. In this view, I hold that the order rejecting the petition for amendment of the appeal memorandum does not preclude the appellants from raising this claim over again at the final decree proceedings. The courts below are not right in holding that the above order concludes either expressly or impliedly the plaintiff's right to agitate this question over again. The decision in the earlier second appeal also does not preclude the appellants from raising this plea over again in the final decree proceedings. Therefore, the court has to adjudicate on the merits of the claim urged by the appellants.