IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 FAO.No. 75 of 2007() ---------------------------- AS.300/2006 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.535/2005 of MUNSIFF COURT, NORTH PARAVUR .................... APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------------------- V.M. MATHAPPAN, S/O.LATE MATHU, RESIDING AT VADASSERY HOUSE, VADUTHALA P.O., KOCHI, ERNAKULAM. BY ADV. SRI.P.K.RAMKUMAR SMT.ANITHA RAMKUMAR RESPONDENTS/ RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. TREESA GEORGE W/O.LATE GEORGE, RESIDING AT VADASSERY HOUSE, MADAPLATHURUTHUMURI, MOOTHAKUNNAM VILLAGE, PARAVOOR TALUK, ERNAKULAM DISTRICT. 2. JOSHY S/O.LATE GEOREGE, RESIDING AT VADASSERY HOUSE, MADAPLATHURUTHUMURI, MOOTHAKUNNAM VILLAGE, PARAVOOR TALUK, ERNAKULAM DISTRICT. BY THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A. NO.856/2007 IN FAO NO.75/2007 DISMISSED 02/07/2008 SD/- M.N.KRISHNAN, JUDGE // TRUE COPY // Rs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = F.A.O. NO. 75 OF 2007 = = = = = = = = = = = = = = = Dated this the 2nd day of July, 2008. J U D G M E N T This appeal is preferred against the judgment of the appellate court in A.S.300/06. By the said judgment the appellate court has remanded the case to the trial court. The prayer in the suit is to declare that the plaintiff has got a right of way through the plaint C schedule pathway and also get it widened as a motorable way having a minimum width of 12 links. A reading of the plaint would reveal that the property claimed by the plaintiff did belong to the parents and as per the Will B schedule property was bequeathed in favour of one party and C schedule property was bequeathed in favour of another party. B schedule in the Will is the A schedule and C schedule in the Will is the B schedule. 2. As per the Will a way was provided to the B schedule through the eastern side of the C schedule property in the Will. The C schedule property is obtained by the defendant. It is also submitted that thereafter there had FAO 75 OF 2007 -:2:- been some talk and a partition deed was entered into and a building has been constructed in the C schedule of the Will thereby obstructing the way. The plaintiff would contend that the defendants assured him that they will provide a motorable way to his property. It is that way which is described in the plaint which is said to be used and over which he claims right. Unfortunately, the defendants did not contest the case but nevertheless the suit was dismissed by the Court below. 3. On appeal both sides entered appearance and the appellate court has remanded the matter. A perusal of the judgment towards the last page would reveal that both parties had prayed for a remand. When there is no written statement filed and even then the suit is dismissed the matter has to be reconsidered. The Court has to consider the case of the plaintiff. The case of the plaintiff appears that though originally a way was provided through the eastern side of the plaint C schedule in the Will, by subsequent arrangement it has been shifted to the other side FAO 75 OF 2007 -:3:- over which he has got right and therefore he wants to enforce the said right of way by virtue of a declaration. All the materials namely the recitals in the Will, the subsequent conduct of the parties by way of a partition and any agreement entered into between the parties at that time are all matters that germanes for consideration for a proper decision in the matter. Unfortunately as the defence is not available the Court is not able to say about the same. Therefore, at any rate, the remand by the Court below cannot be said to be incorrect. But I make it clear that the matter is to be totally reconsidered by the trial Court. The trial court has to take into consideration the entire pleadings available in the plaint along with the defence which is to be set up by the defendant, then raise proper issue, consider the matter and then dispose it of in accordance with law after affording opportunities to both sides. The appellate court has also granted right to even amend the plaint which also can be made use of by the plaintiff if he feels it necessary. FAO 75 OF 2007 -:4:- 4. There was an order of status quo ordered by this Court on 1.3.2007. Let it continue till a final decisions is taken in the matter. The appellant is directed to appear before the trial court on 5.8.2008 and on his appearance notice be given to the other side regarding the posting. FAO is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-