IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 SA.No. 842 of 1997(A) AS.77/1997 of DISTRICT COURT, MANJERI OS.185/1989 of SUB COURT, MANJERI .................... APPELLANT: (APPELLANT BEFORE THE LOWER APPELLATE COURT- 2ND (RESPONDENT) DEFENDANT BEFORE THE TRIAL COURT) ------------------------------------------------------------------------- K.KADEEJA UMMA, D/O. KAIPPANGAL SAIDALAVI ALIAS BAPPU HAJI. RESIDING AT PERINTALMANNA AMSOM AND DESOM IN PERINTALMANNA TALUK. BY ADV. SRI.T.KRISHNANUNNI (SENIOR) RESPONDENTS: (RESPONDENTS BEFORE THE LOWER APPELLATE COURT - PETITIONER & RESPONDENTS 1 & 3 TO 5) PLAINTIFF & DEFENDANTS 1 AND 3 TO 5 BEFORE THE TRIAL COURT) ------------------------------------------------------------------------------------- 1. K. PATHUMMA UMMA, D/O. LATE KIZHISSERI AYAMMU. PERINTALMANNA AMSOM AND DESOM IN PERINTALMANNA TALUK. 2. PATHUTTY UMMA, D/O. LATE KIZHISSERI AYAMMU. -DO- -DO- 3. MOHAMMEDALI, S/O. MUTHEDATH MANUKUTTY VYDIAYAR, -DO- -DO- 4. MOHAN ALIAS SIMON, PROPRIETOR, PRAKASH STORE, STATIONERY MERCHANT, CALICUT ROAD, PERINTALMANNA. 5. T.K. SAJU, PROPRIETOR, FRIENDS FOOT WEAR, BUKHARI TOURIST HOME, OOTTY ROAD, PERINTALMANNA. (RESPONDENTS 4 AND 5 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER THE ORDER DATED 01.08.2007 IN I.A. NO. 1361/2007) ADV. SRI.K.M.SATHYANATHA MENON FOR R3 SRI.V.R.VENKATAKRISHNAN (SR.) FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== S.A. No. 842 of 1997 ========================== Dated this the 11th day of December, 2008. JUDGMENT The 2nd defendant in O.S. No. 185 of 1989 on the file of the Sub Court, Manjeri is the appellant in this Second Appeal. The said suit was one for partition and separate possession of the plaintiff's 1/5 share over the plaint schedule property. The appellant was made a party to the suit since she had purchased 2/5 shares from two of the other sharers. The plaint schedule property as well as the northern property belonged to the family of the appellant's husband Muhammed alias Babu. The plaint schedule property is item No.3 of the G schedule to Ext.B1 partition deed dated 27.12.1955 which took place in the appellant's husband's family. G schedule item No.3 in Ext.B1 was allotted to the 5 sisters of the appellant's husband. The property lying to the north of the suit property herein which is item No.4 of the A schedule of Ext.B1, was allotted to the appellant's husband under Ext.B1. Ext.B1 itself provides for a way in the northern property to reach the road on the east for the use of the sharers. In the present suit, a final decree was passed accepting S.A. No. 842 of 1997 : 2: the commissioner's allotment. Plot A is allotted towards the 1/5 th share of the plaintiff, plot B is allotted towards the 2/5 share of the defendants 1 and 3 and plot C is allotted to the appellant who is the purchaser of the 2/5 share. Plot A and plot B are plots lying east-west lengthwise. The eastern end of both plots A and B consists of shop buildings abutting the road running north- south on the east and leaving no vacant space either on the north or south of the said two plots. So, plot C which lies to the west of plots A and B cannot be provided with a way either through plot A or through plot B in view of the existence of the shop buildings at the eastern extremity of both plots A and B. The residential building constructed by the appellant in plot C is not confined to plot C alone but it has spilled over to the northern plot which was allotted to her husband under Ext.B1 partition deed. It is from that northern plot that the pathway referred to in Ext.B1 starts from the northern boundary of plot C and reaching up to the eastern road. Even though the appellant contended that no pathway has been provided to the appellant through the plaint schedule properties and that the pathway S.A. No. 842 of 1997 : 3: which is provided to her through the northern property is through somebody else's property, as a matter of fact, the said pathway has been in existence even prior to 1955 in the northern property allotted to her husband under Ext.B1 partition deed of the year 1955. Thus, it cannot be said that the final decree has deliberately omitted to provide a pathway to the appellant through the plaint schedule property itself. The only property which could have been allotted to the share of the appellant could only be plot C since half of the residential building constructed by the appellant is existing in plot C. From that plot C she can very well use the pathway through the northern property consistent with the provision made in Ext.B1 partition deed which is binding on the appellants' assignors who were parties to Ext.B1. 2. But the present problem of the appellant is not merely the non allotment of a pathway to the eastern road through the plaint schedule property. Aggrieved by the final decree, she filed an appeal before the District Court, Manjeri as A.S. No. 77 of 1997 with a petition to condone the delay of one year 7 months S.A. No. 842 of 1997 : 4: and 22 days. The petition to condone the delay was I.A. No. 725 of 1997 which, after hearing both sides, was dismissed by the lower appellate court on 29.10.1997 and consequently the appeal was dismissed as time barred. It is the legality or otherwise of the order on the delay petition which primarily arises for consideration in this Second Appeal. Having regard to the inordinate delay and the allotment of plot C to the appellant, it cannot be said that by dismissing the petition to condone the delay, the lower appellate court has deprived the appellant an opportunity to argue an appeal which is otherwise meritorious. In that view of the matter, I do not find any justification for interfering with the discretion exercised by the lower appellate court in refusing to condone the inordinate delay. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal which is accordingly dismissed. Dated this the 11th day of December, 2008. V. RAMKUMAR, JUDGE. Rv S.A. No. 842 of 1997 : 5: V. RAMKUMAR, J ------------------------------------ S.A. No. 842 of 1997 ---------------------------------------- 11th day of December, 2008. JUDGMENT S.A. No. 842 of 1997 : 6: