IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 WP(C).No. 27555 of 2008(E) -------------------------- OS.522/2000 of M.C.,VADAKKANCHERRY .................... PETITIONERS: ------------ 1. VASU, AGED 63, S/O KUNNATHULLY AYYAPPAN, ALOOR VILLAGE DESOM, THALAPPILLY TALUK. 2. SREEDHARAN, S/O KUNNATHULLY AYYAPPAN, ALOOR VILLAGE DESOM, THALAPPILLY TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: ------------- 1. SREEMATHI, W/O KUNNATHULLY KOCHUKUTTAN, ALOOR VILLAGE DESOM TALAPPILLY TALUK. 2. SURENDRAN, S/O KUNNATHULLY KOCHUKUTTAN ALOOR VILLAGE DESOM, TLAPPILLY TALUK. BY /- THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. -------------------------------- W.P.(C).NO.27555 OF 2008-E ---------------------------------- Dated this the 16th day of September, 2008. JUDGMENT Petitioners, who are defendants 2 and 3 in the suit namely O.S.No.522/2000 on the file of the Munsiff Court, Wadakkanchery and who are respondents 2 and 3 in the final decree application challenge Ext.P6 order passed by the court below refusing to remit the report and plan to the advocate commissioner appointed in the final decree proceedings. Petitioners are allottees of plots A and B in the plan submitted by the advocate commissioner. The other defendants had been allotted plots C and D. 2. The main grievance of the petitioners is that by providing a ten feet wide pathway as a motorable way as plot E by the commissioner, the second petitioner, who is the allottee of plot B, will have to demolish the north eastern corner of his residential building situated in plot B. The petitioners, therefore, wanted a re- alignment of the way leading to the respective plots by providing a way in between plots A and B from the public road. The court below was not inclined to accept the request of the petitioners on the WPC.NO.27555/2008 . 2 view that the proposal suggested by the advocate commissioner is just and fair. 3. Neither the commissioner nor the court below appear to have explored the possibility of finding out a way causing least hardship to the sharers. Even going by the alignment suggested by the commissioner which is plot E, the strip of land earmarked as common access to the public road on the north, can be enjoyed only if a corner of the residential building in the plot allotted to the second petitioner herein is demolished. Instead of that, access to the public road on the north could have been provided either in between Plots A and B or towards the western extremity of plots A,C and D causing least hardship to the sharers. It is not seen that the court below has applied its mind to any other alternate alignment. Hence, the petitioners are permitted to move the court below for having a motorable road in a different location causing least hardship to the sharers and without involving demolition of any of the existing structures. In case the petitioners file an application before the court below within three weeks from today, the same shall be considered notwithstanding the dismissal of I.A.No.1411/2008 by that court, but after hearing all the parties concerned. The court below shall WPC.NO.27555/2008 . 3 pass the final decree only after considering the request, if any made by the petitioners herein within three weeks from today. Issue photocopy. V. RAMKUMAR,JUDGE. cl