IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 SA.No. 973 of 1996() ----------------------------- AS.62/1996 of DISTRICT COURT, KASARAGOD I.A.NO.817/1991 IN OS.21/1984 of SUB COURT, KASARAGOD .................... APPELLANT/APPELLANT/1ST DEFENDANT: ---------------------------------------------------------------- SEEMANTHINI, RESIDING AT BATTAMPARA IN KASARAGOD, KASBA VILLAGE, P.O. KASARAGOD, KASARAGOD TALUK. BY ADV. SRI.N.L.KRISHNAMOORTHY, SRI.K.LAKSHMINARAYANAN, SMT.SATHYA SHREEPRIYA, SMT.K.A.MAYA. RESPONDENTS/RESPONDENTS/PLAINTIFFS: ------------------------------------------------------------------ 1. KARTHIYAYINI, RESIDING AT GURUKRIPA, BATTAMPARA, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND POST. 2. RAMAKRISHNAN, RESIDING AT GURUKRIPA, BATTAMPARA, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND POST. 3. CHANDRAVATHI, RESIDING AT GURUKRIPA, BATTAMPARA, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND POST. 4. NARAYANAN, RESIDING AT GURUKRIPA, BATTAMPARA, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND POST. 5. GANGADHARAN, RESIDING AT GURUKRIPA, BATTAMPARA, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND POST. SA.No. 973 of 1996 6. JAYALAXMI, RESIDING AT GURUKRIPA, BATTAMPARA, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND POST. 7. MANOHARAN, RESIDING AT GURUKRIPA, BATTAMPARA, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND POST. 8. SAROJA, RESIDING AT GURUKRIPA, BATTAMPARA, KASARAGOD KASBA VILLAGE, KASARAGOD TALUK AND POST. *9. K. ACHUTHAN, S/O.VELLACHI, RESIDING AT BATTAMPARA, KASBA VILLAGE, KASARAGOD TALUK AND POST. * (DIED) *ADDL. R10 TO R17 IMPLEADED ADDL. R10: JANAKI, W/O.LATE K. ACHUTHAN, ERIYARPU HOUSE, AGED 55 YEARS, BELA VILLAGE, P.O. NEERCHAL, KASARAGOD TALUK, VIA. KUMBLA. ADDL. R11: AMITHA, D/O.LATE K. ACHUTHAN, ERIYARPU HOUSE, AGED 30 YEARS, BELA VILLAGE, P.O. NEERCHAL, KASARAGOD TALUK, VIA. KUMBLA. ADDL. R12: SASIKALA, D/O.LATE K. ACHUTHAN, ERIYARPU HOUSE, AGED 28 YEARS, BELA VILLAGE, P.O. NEERCHAL, KASARAGOD TALUK, VIA. KUMBLA. ADDL. R13: LAKSHMINARAYANAN, S/O.LATE K. ACHUTHAN, ERIYARPU HOUSE, AGED 26 YEARS, BELA VILLAGE, P.O. NEERCHAL, KASARAGOD TALUK, VIA. KUMBLA. ADDL. R14: SADANANDA, S/O.LATE K. ACHUTHAN, ERIYARPU HOUSE, AGED 24 YEARS, BELA VILLAGE, P.O. NEERCHAL, KASARAGOD TALUK, VIA. KUMBLA. ADDL. R15: SANTHOSH, S/O.LATE K. ACHUTHAN, ERIYARPU HOUSE, AGED 22 YEARS, BELA VILLAGE, P.O. NEERCHAL, KASARAGOD TALUK, VIA. KUMBLA. SA.No. 973 of 1996 ADDL. R16: USHA, D/O.LATE K. ACHUTHAN, ERIYARPU HOUSE, AGED 21 YEARS, BELA VILLAGE, P.O. NEERCHAL, KASARAGOD TALUK, VIA. KUMBLA. ADDL. R17: ANUSHA, D/O. LATE K. ACHUTHAN, ERIYARPU HOUSE, AGED 19 YEARS, BELA VILLAGE, P.O. NEERCHAL, KASARAGOD TALUK, VIA. KUMBLA. * THE LEGAL REPRESENTATIVES OF DECEASED 9TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 10 TO 17 AS PER ORDER DATED 25/10/2006 IN C.M.P.1483/2002. R10 TO R17 BY ADV. SRI.V.V.ASOKAN, SMT.S.AMINA. R1 TO R8 BY ADV. SRI.K.I.MAYANKUTTY MATHER, SRI.BEPIN VIJAYAN. R9 BY ADV. SRI.V.V. ASOKAN, SMT.JIJIMOL J.VADAKKEN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs SA.No. 973 of 1996 ORDER ON C.M.P.NO.2161/1996 IN S.A.NO.973/1996 DISMISSED 12/01/2011. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 973 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of January, 2011. JUDGMENT This appeal arises out of a final decree proceedings in O.S. 21 of 1984 before the Sub Court, Kasaragode. There is no dispute as regards the preliminary decree. In the final decree proceedings, a commission was deputed, who filed a report and plan. It appears that the appellant had filed objections to the same, pointing out various aspects which made the report unacceptable. The trial court on 15.7.1995 took up the I.A. filed by the appellant herein and disposed of the same holding that the objection will be considered at time of final decree proceedings. The complaint is that at the time of considering the final decree proceedings, the objection to the commission report was not at all considered and the final decree came to be S.A.973/1996. 2 passed without considering his objections. The matter was taken up in appeal by the appellant herein. The lower appellate court though found that the trial court had omitted to consider the objection of the appellant, considered the objections and came to the conclusion that there is no merit in the same. Accordingly, the final decree passed by the trial court was confirmed. 2. Before this court, learned counsel for the appellant raised several points for consideration. It is pointed out by him that the division of the property as well as the valuation of the house made by the commissioner are not correct and the allocation made is not proper. It was also pointed out that there is no access to the property and these vital aspects have been omitted to be noticed by the courts below. 3. It may at once be observed that in one of the items there is a well and the commissioner recommended that the well may be allowed to be used by all the sharers. There is no finding as regards this aspect by the trial court. S.A.973/1996. 3 But the lower appellate court has made good the infirmity in that respect. The lower appellate court also found that all the sharers cannot have right of way on both sides and the appellant will have to be satisfied with the way on one side of the property. Contentions regarding valuation etc. were not accepted. 4. The only question that now arises for consideration is the access to the property. Neither the plan nor the commission report indicates the means of access to the properties. To ascertain whether there was a way, the schedule of the property shown in the preliminary decree was looked into. The eastern boundary is shown as compound wall and thodu and the northern boundary is shown a thodu. It is true that a dotted line is shown on the northern and eastern side of the property. But there is nothing to indicate that it is a pathway or that is the means of access to the plaint schedule property. S.A.973/1996. 4 5. Learned counsel for the respondents has pointed out that the property must have had some means of access and that would be available even now. Of course the property must have had some means of access from some side of the property. Since a grievance has been raised that the property allotted to the appellant does not have direct access, that needs to be considered by the courts below. As of now, there is nothing to show that the dotted line shown in the commission plan is the pathway available to the parties. This aspect would have to be reconsidered by the trial court. Hence this appeal is allowed to the above extent and is remanded to ascertain the means of access to the property allotted to the sharers by the trial court. In all other respects, the final decree stands confirmed. The trial court shall make every endeavour to dispose of the matter within three months from the date of appearance of the parties. Parties shall appear before the court below on 2.2.2011. In case the same commissioner, who has already S.A.973/1996. 5 filed the report, is available, his services may be utilized to ascertain the means of access to the property and if it so happens and a reallocation became necessary in view of the provision for access, that may also be done. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.