MOITHEEN KUNJU Vs. VEEVIKUNJU

JUDGEMENT

(1.) Revision petitioner is the plaintiff in O. S.98 of 1975 of the Munsiff's Court, Kayamkulam. Plaintiff filed the suit for partition claiming 7/18 shares in the property. As there is a mortgage in favour of the first defendant in respect of 80 cents of land for Rs. 599/- plaintiff offered to pay proportionate mortgage amount. First defendant claimed the mortgage amount and the second defendant claimed absolute rights over the property on the basis of a gift deed. The Trial Court held that the gift deed has not taken effect during the life time of the donor and the suit was decreed granting partition and redemption.

(2.) Preliminary decree was passed on 20-12-1976. Defendants 1 and 2 filed A. S.59 of 1976. The appeal was dismissed on 26-10-1979. They filed S. A. 42 of 1980 before this Court. The Second Appeal was also dismissed on 1-3-1985. As per the preliminary decree the plaintiff applied for passing the final decree. First defendant (respondent herein) filed I. A. 297 of 1986 under O.8 R.9 C. P. C. for receiving additional written statement claiming value of improvements. Plaintiff opposed the petition contending that the petition is not maintainable as the preliminary decree has already been passed adjudicating the dispute between the parties and that the court has only to consider matters directed by the preliminary decree at the final decree stage. In other words, plaintiff contended that nothing new could be urged in the preliminary decree.

(3.) The learned Munsiff allowed the petition on payment of Rs. 75/- as costs. Revision petitioner challenges the above order contending that where a plea was available to a party and not urged ia the written statement cannot be allowed to be set up in the final decree proceedings. It is contended that the first defendant is estopped from claiming the value of improvements as he did not raise it at all during any stage of the trial or even before the appellate courts.