IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 RSA.No. 441 of 2011() --------------------- AS.86/2005 of SUB COURT,ATTINGAL OS.34/1996 of MUNSIFF COURT,VARKALA .................... APPELLANTS/ APPELLANTS/DEFENDANTS ----------------------------------------- 1. SATHYA BHAMA, D/O.CHELLAPPAN, AGED 59 YEARS, ANDITHITTA VEEDU, KAIKKARA DESOM, KADAKKAVOOR VILLAGE. 2. VASANTHAMONY, D/O.CHELLAPPAN, AGED 57 YEARS, ANDITHITTA VEEDU, KAIKKARA DESOM, KADAKKAVOOR VILLAGE. 3. KUMARY JOY, D/O.PADMASUEAN, KAIKKARA, KADAKKAVOOR VILLAGE. BY ADV. SRI.T.H.ABDUL AZEEZ SMT.M.ISHA RESPONDENTS/ RESPONDENT(S): PLAINTIFFS ------------------------- 1. KOCHUVELAYUDHAN, S/O.PADMANABHAN (DIED), KUNNATH VEEDU, KAIKKARA DESOM, KADAKKAVOOR VILLAGE. 2. SULAJAKUMARI, D/O.GOVINDAN, THATTARATHU VEEDU, KAIKKARA DESOM, KADAKKAVOOR VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.441 OF 2011 --------------------------------------------- Dated 30th June, 2011 JUDGMENT Defendants in O.S.34/1996 on the file of Munsiff court, Varkkala are challenging the final decree passed by the learned Munsiff as confirmed by the Sub Judge, Attingal in A.S.86/2005. By the preliminary decree plaint schedule property was found to be available for partition. It was directed to be divided into two equal shares and one share was allotted to the plaintiff and the remaining share to the defendants. A commission was appointed to divide the property, in accordance with the preliminary decree. The Commissioner divided the property into two plots. It was found that the total extent available is RSA 441/11 2 10.625 cents. He divided the plots into two equal plots. The first plot was allotted to the share of the plaintiff and second plot to the defendants. Second plot includes the house where the defendants are residing. Grievance of the appellants is that though the property was divided, no way was provided separately for the property allotted to the appellants and therefore, courts below should have directed the Commissioner to allow separate way and as it was not done, the final decree is to be set aside. Learned counsel submitted that as is clear from the report submitted by the Commissioner and accepted by the courts below, the way which was provided to the properties is through the property of Adv.Lohithakshan and a separate way should have been provided through the property divided. 2. Submission of the learned counsel RSA 441/11 3 could have been accepted, if there is any other way, except the way passing through the property of Adv.Lohithakshan, to reach the entire property divided under the final decree. Even if a way is to be provided through the remaining property, to the appellants, that way would only lead to the same way, which was made available by the Commissioner, though the position could be changed from south to north- east. Even if, it is not specifically provided that the way XY marked by the Commissioner is available to the appellants also, in law as that is the only way available to the property appellants are also entitled to use it like the plaintiff. As no substantial question of law is involved, appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.