IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 CRP.No. 129 of 2010() --------------------- AGAINST THE ORDER IN EA 783/09 IN E.P 437/08 IN OS.558/1988 of PRINCIPAL SUB COURT,ERNAKULAM .................... REVN. PETITIONER(S)/DECREE HOLDER/PLAINTIFF ------------------------------------------------------- BABY M.K., D/O.LATE KUMARA PILLAI, MOOTHEDATHU HOUSE, 40/6604-A, M.G.ROAD, KOVILVATTOM DESOM, ERNAKULAM, COCHIN-682 035. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA RESPONDENT(S): RESPONDENTS/JUDGMENT DENBTORS/DEFENDANTS ------------------------------------------------------- 1. DR.M.K.MANI, S/O.LATE KUMARA PILLAI, "KUMARA KRIPA", KRISHNASWAMY ROAD, ERNAKULAM. 2. M.G.CHANDRAN, S/O.LATE KUMARA PILLAI, MUTHEDATH HOUSE, M.G.ROAD, NORTH END, ERNAKULAM. 3. M.K.MOHANAKUMARI, D/O.LATE KUMARA PILLAI, HOUSE NO.56, NEDA STREET NO.2, COIMBATORE-640 001. 4. M.K.SEETHALAKSHMI, D/O.KUMARA PILLAI, MUTHEDATH HOUSE, RESIDING AT HOUSE NO.40/6604-A, M.G.ROAD, KOVILVATTOM DESOM, ERNAKULAM VILLAGE. ADV. SRI.T.K.VENUGOPALAN FOR R4 SRI.SHIBU JOSEPH FOR R4 SRI.JAIJI ITTEN FOR R2 SMT.R.RANJINI FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.09.2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.129 of 2010 -------------------------------------- Dated this the 15th day of September, 2010. ORDER I have by a separate order allowed R.P.No.813 of 2010 and recalled the order dated June 8, 2010 as it was rendered without hearing counsel for respondent No.2 and heard counsel on both sides. 2. This Revision Petition is filed by the plaintiff/decree holder in O.S.No.558 of 1988 of the court of learned Principal Sub Judge, Ernakulam. In that case, a preliminary decree for partition was passed. Pursuant to that, petitioner filed I.A.No.190 of 2004 for passing a final decree. In the course of that proceeding the Advocate Commissioner inspected the property with the assistance of the Surveyor to effect partition and submitted report and plans [Exts.C1(a) to C1(d)]. As per the report and plans the pathways mentioned therein were set apart for the use of the sharers referred to in the report. Accepting that report and plans the court passed a final decree. That final decree has become final. Petitioner filed E.P.No.477 of 2008 for execution of the final decree and for delivery of property allotted to him. Executing court passed order on 13.08.2009 on E.A.No.783 of 2009 for delivery. Respondent No.2 felt aggrieved by the said order and filed E.A.No.822 of 2009 for review of order dated 13.08.2009. Executing court allowed that application and reviewed the order dated 13.08.2009 which is under challenge in this revision at the instance of plaintiff/decree holder. Vide order dated June 8, 2010 this Court C.R.P.No.129/2010 2 allowed the revision and set aside Annexure-A5, order on E.A.No.822 of 2009. Thereafter respondent No.2 filed R.P.No.813 of 2010 seeking review of the order dated June 8, 2010 in C.R.P.No.129 of 2010. 3. As per the report submitted by the Advocate Commissioner, plaint A schedule item No.1 has been divided into plots A to G. Plots E and F are allotted to the petitioner while respondent No.4 gets plot G. Respondent No.2 gets plot C. Respondent No.3 gets plot B. Commissioner has set apart plot D way for access to plots B, G and F (allotted to petitioner and respondent Nos. 3 and 4, respectively). The plan prepared by the Surveyor shows that plot C allotted to respondent No.2 has direct access from the main road. Plaint B schedule item No.1 has been divided as plots A to G. Of that, plots A and B are allotted to the petitioner while respondent Nos. 2 to 4 get plots, F, E and C, respectively. Plot G is the pathway. Commissioner has stated that the plot allotted to respondent No.2 abuts public road and that plot G, the pathway is provided for other sharers. So far as plaint B schedule item No.2 is concerned, there is no dispute since no pathway is set apart. Plaint B schedule item No.4 is divided into plots A to G. Plots C and D are allotted to respondent Nos.4 and 3, respectively. Commissioner has stated that the F schedule pathway is set apart for the use of respondent Nos.4 and 3 to whom plots C and D are allotted, respectively. Accepting the above report and plans final decree was passed. It is not disputed that the final decree has become final. Now the dispute is C.R.P.No.129/2010 3 concerning allotment of plot D (pathway) (in plaint A schedule item No.1) for the use of the sharers of plots B, G and F (ie. petitioner and respondent Nos.3 and 4). According to the learned counsel for petitioner and respondent No.4, plot D pathway is set apart for the use of B, G and F plots, ie. petitioner and respondent Nos.3 and 4 alone and respondent No.2 has no right over the said pathway. It is pointed out by learned counsel for petitioner and respondent No.4 that among plaint A schedule item No.1 what was allotted to respondent No.2 is plot C which has direct access from the M.G.Road on the east and hence it was not necessary to provide access for respondent No.2 to plot C from plot D, pathway set apart for the use of sharers of B, G and F plots. Learned counsel for respondent No.2 contends that going by the plan prepared by the Surveyor as per direction of the Advocate Commissioner, Plot D, pathway is “left in common” for use of all the sharers and hence other sharers cannot exclude respondent No.2 using plot D, pathway. It is contended on behalf of respondent No.2 that to that extent there is no need to interfere with the order on E.A.No.822 of 2009 filed by respondent No.2. 4. I stated that the report and plans submitted by Advocate Commissioner were accepted by the court while passing the final decree and that final decree has become final. It is seen from the plan prepared by the Surveyor (concerning plaint A schedule item No.1) that the plot D is stated as C.R.P.No.129/2010 4 the “space left for the way in common” which may give the indication that it was meant for the use of all sharers. But it is seen from paragraph No.4 of the report of Advocate Commissioner that it is specifically stated therein that, “............ 'D' Schedule thereof marked in Blue colour in the sketch prepared by the Taluk Suveyor is set apart as a way of access to B, G and F plots. ............” Thus, going by the report (paragraph No.4) it leaves me in no doubt that plot D, pathway referred to in the plan was meant for the use of the sharers to whom B, G and F plots were to be allotted who, it is not disputed before me are petitioner and respondent Nos.3 and 4. Thus, it is evident that what was noted by the Surveyor in the plan 'as space left for way in common' is plot D which the Advocate Commissioner has set apart for the use of sharers to whom B, G and F plots are allotted (petitioner and respondent Nos.3 and 4). Learned counsel for respondent No.2 points out that the plan was prepared as per direction of Advocate Commissioner. True. But the plan cannot override what Advocate Commissioner has stated in paragraph No.4 of his report. Admittedly the report and plan were accepted by the court below while passing final decree. If that be so, respondent No.2 could not, without challenging the final decree, report and plan seek a review of the order dated 13.08.2009 for delivery of plot D, C.R.P.No.129/2010 5 pathway in plaint A schedule item No.1. Nor could the executing court go behind the final decree and say that the plot D (pathway) was set apart for the use of respondent No.2 (to whom plot C among plaint A schedule item No.1) as well. Doing so would do violence to the final decree which so far as that decree stands, cannot be permitted. Even as per the plan submitted by the Surveyor, plot C allotted to respondent No.2 has road frontage on its entire east from the M.G.Road and hence it is not necessary for respondent No.2 to have access to the plot C through plot D, pathway. That is the reason why the Advocate Commissioner has stated that plot D (pathway) is set apart for the use of sharers of B, G and F plots (petitioner and respondent Nos.3 and 4). The mere fact that respondent No.2 may have paid court fee in respect of plot D also cannot entitle him to seek review since the final decree does not permit him to make use of plot D, pathway in plaint A schedule item No.1. In that view of the matter executing court was not correct in allowing review requested by respondent No.2 vide order on E.A.No.822 of 2009. 5. There is no challenge from the side of respondent No.2 as regards allotment of way in B schedule item Nos.1 and 4. In those items also plots allotted to respondent No.2 has direct access from public road and pathways set apart by the Advocate Commissioner are for the use of other sharers who have no access from public roads. As such review petition (R.P.No.813 of 2010) could not have been allowed. C.R.P.No.129/2010 6 6. In the light of my above discussion, the order of executing court on E.A.No.822 of 2009 cannot be sustained. It is liable to be set aside. Resultantly this revision is allowed in the following lines: i. Annexure-A5, order dated September 19, 2009 on E.A.No.822 of 2009 (in E.A.No.783 of 2009 in E.P.No.437 of 2009 in O.S.No.558 of 1988) of the court of learned Principal Sub Judge, Ernakulam is set aside. ii. E.A.No.822 of 2009 is dismissed. iii. E.A.No.783 of 2009 in E.P. No.437 of 2008 will stand allowed. iv. Parties shall bear their cost. I.A.No.583 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks