IMPORTANT POINT
A party in a civil suit cannot raise new contentions in an appeal that contradict their earlier pleadings and must adhere to the evidence presented.

JUDGMENT :

A. Badharudeen, J.

4th defendant in O.S.No.153/2009 on the files of the Sub Court, Alappuzha, has preferred this appeal under Section 96 r/w Order XLI Rule 1 of the Code of Civil Procedure, 1908, challenging the decree and judgment in the above case, dated 30.6.2011.

2. Heard the learned counsel for the appellant and the learned counsel appearing for the 1st respondent.

3. I shall refer the parties in this appeal as ‘plaintiff’ and ‘defendants’ with reference to their status before the trial court, hereafter.

4. The case of the plaintiff before the trial court was that the plaint schedule properties originally belonged to one Andi Chandrasekharan, the father of the plaintiff and defendants 1 to 4. Now, he died intestate, and therefore, properties are liable to be partitioned, and thereby, the plaintiff and defendants are entitled to get 1/5th share each in the plaint schedule property.

5. Defendants 1 to 4 filed joint written statement raising contention that the plaint schedule property is not partible, since due share was given to the plaintiff already. The further contention raised by the defendants 1 to 4 was that, A.C.Thankaraj is another son of Andi Chandrasekharan. Though he is no more, his legal heirs are entitled to get share over the plaint schedule property and accordingly, question of non-joinder was raised. Subsequently, plaintiff filed I.A.Nos.574/2011 and 604/2011 and accordingly, additional defendants 5 and 6 got impleaded as the legal heirs of A.C.Thankaraj.

6. The trial court addressed the rival contentions by framing appropriate issues and recorded evidence. Evidence confined to that of Exts.A1 to A4 series.

7. Finally, the trial court found that the plaintiff, defendants 1 to 4 and late A.C.Thankaraj are the legal heirs of Andi Chandrasekharan and accordingly, preliminary decree of partition was passed granting 1/6th share to the plaintiff. Thus, preliminary decree of partition is granted as under:

“In the result, a preliminary decree is passed in the following lines:

(a) The plaint schedule property shall be partitioned by metes and bounds for separation of 1/6th share to the plaintiff.

(b) The plaintiff shall file an application for Final Decree within 3 months from the date.

(c) The equities and reservations will be considered at the time of passing the Final Decree.

(d) Considering the relationship between the parties, they shall bear their respective costs.

(e) The suit is adjourned sine die.”

8. While assailing the preliminary decree of partition, the learned counsel for the appellant/4th defendant raised a contention that, even though the 4th defendant filed written statement along with defendants 1 to 3, raising issue of non-joinder on the assertion that the legal heirs of A.C.Thankaraj, were not made as parties to the suit, as per Gift Deed No.75/1982 of Ambalappuzha SRO executed by the father, Andi Chandrasekharan, 5 cents of property assigned to A.C.Thankaraj and thereby, his right to get partition in the remaining portion of the father’s property has been relinquished. Therefore, the matter would require remand to re-consider the share excluding A.C.Thankaraj from the purview of partition. Even though the learned counsel submitted that another gift deed was executed by the mother in favour of A.C.Thankaraj, the same has no bearing on the facts of this case.

9. The learned counsel appearing for the 1st respondent/plaintiff supported the preliminary decree of partition.

10. In view of the rival contentions, the points arise for consideration are;

1) Whether the contention raised by the 4th defendant in derogation to his contention in the written statement is liable to succeed?

2) Whether the decree and judgment of the trial court would require interference?

3) Reliefs and costs.

11. While addressing point No.1, I have gone through the written statement filed by the 4th defendant/appellant along with defendants 1 to 3. In the written statement, the specific contention raised by the 4th defendant is that, t