IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH AUGUST 2008 / 3RD BHADRA 1930 F.A.O.No. 115 of 2004() --------------------- AS.98/1998 OF DISTRICT COURT, KOLLAM OS.764/1995 OF ADDL. MUNSIFF COURT, KOLLAM .................... APPELLANT/SECOND RESPONDENT/SECOND DEFENDANT: ---------------------------------------------- 1. YOHANNAN PHILIP, KANNAMKARAZHIKATHU VEEDU, NADUVILAKARA CHERRY, THRIKKOVILVATTOM VILLAGE. *2. CHINNAMMA PHILIP, KANNAMKARAZHIKATHU VEEDU, NADUVILAKARA CHERRY, THRIKKOVILVATTOM VILLAGE. *3. THOMASKUTTY, KANNAMKARAZHIKATHU VEEDU, NADUVILAKARA CHERRY, THRIKKOVILVATTOM VILLAGE. *4. DANIELKUTTY, KANNAMKARAZHIKATHU VEEDU, NADUVILAKARA CHERRY, THRIKKOVILVATTOM VILLAGE. *5. MARYKUTTY, KANNAMKARAZHIKATHU VEEDU, NADUVILAKARA CHERRY, THRIKKOVILVATTOM VILLAGE. *6. YOHANNANKUTTY, KANNAMKARAZHIKATHU VEEDU, NADUVILAKARA CHERRY, THRIKKOVILVATTOM VILLAGE. BY ADV. SRI.P.B.SURESH KUMAR (* ADDL. APPELLANTS 2 TO 6 ARE IMPLEADED AS PER ORDER DATED 25/08/2008 IN I.A. NO. 3470/2008.) F.A.O.No. 115/2004 RESPONDENTS/APPELLANT& IST RESPONDENT/PLAINTIFF& IST. DEFENDANT: --------------------------------------------------------------- 1. PODIYAMMA, D/O.MARIYA, CHARUVILA PADINJATTATHIL CHERRY, KONNATHU CHERRY, THRIKKOVILVATTOM VILLAGE. 2. SOSAMMA, KANNAMKARAZHIKATHU VEEDU, NADUVILAKARA CHERRY, THRIKKOVILVATTOM VILLAGE. BY ADV. SRI.N.VIMALAN - R1 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O.No. 115/ 2004 ORDER ON I.A. NO.1345 OF 2004 IN F.A.O.No. 115 OF 2004 DISMISSED SD/- 25/08/2008 M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE scm M.N.KRISHNAN, J. -------------------------- F.A.O. No. 115 OF 2004 --------------------- Dated this the 25th day of August, 2008 JUDGMENT This appeal is preferred against the judgment of the learned District Judge, Kollam, in A.S. 98/1998. By the said judgment, the learned Judge remanded the case for fresh disposal and directed the parties to appear before the trial court on 19.1.04. Earlier, the trial court had dismissed the suit. The learned District Judge has considered the matter in paragraphs 11 and 12 of its judgment. There had been an item described as ‘C’ schedule in Ext.A2. There are clear recitals to the effect that there is a pathway intended to be used by all the four sharers and nobody has the right to prevent the others from using it. The defendants in the suit would contend that there was a separate way and not through the ‘B’ schedule item to support their contention. The learned District Judge found that Ext.A3 does not indicate the identity of the ‘C’ schedule item and further in Ext.A2 separate ways with 5 links width was provided to the different sharers. The learned Judge came to the conclusion that the identity of the pathway described in Ext.A2 and the identity of ‘C’ schedule described in the plaint are to be FAO No.115/04 2 assessed. It further held that if the pathway described in this case are one and the same, the plaintiff may have a sustainable case. So for that purpose when an application was moved before the appellate court for issuance of a Commission, the appellate court allowed it and held that when the commission application is allowed the matter has to go back to the trial court for the reason that the parties may be permitted to file objections if any against the commissioner’s report and that additional evidence may be necessary. The only way out in a suit of this nature, where a party claims easement by grant, can be only after finding out which is the pathway. Therefore, I cannot find fault with the learned District Judge for giving an opportunity to the plaintiff to establish that factum. Therefore, I do not find any serious error committed by the learned District Judge much less any substantial question of law involved which warrants interference of this court and therefore, the FAO is dismissed. Parties are directed to appear before the Tribunal on 26.9.08. M.N.KRISHNAN, JUDGE vps FAO No.115/04 3