The issue raised by the defendant, even if not a part of suit, can be decided by the court; SC.

Supreme Court of India

JUSTICE MOHAN M. SHANTANAGOUDAR & JUSTICE R. SUBHASH REDDY

The SC {Sajan Sethi v. Rajan Sethi} holds that having raised the dispute of the common areas, when such claim is considered by framing an issue, which are in accordance with the pleadings and evidence on record, it is not open for the  appellant-defendant to plead that directions issued in the impugned judgment, are beyond the scope of the suit. It was held that having invited findings by raising a dispute of the common areas, the appellant-defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas. 

In the present case, the suit filed by the respondent -plaintiff is only for partition and permanent injunction with regard to second floor portion of the house and the terrace rights, but it is the appellant / defendant who has raised the dispute with regard to common areas in the suit property in terms of paragraph 14 of the written statement. Therefore, the SC held that once the defendant raised the said aspect cannot challenge the finding arrived by the courts below, on the count, that the said issue is not the part of the suit.