IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 842 of 1997(A)
1. K.KADEEJA UMMA
... Petitioner
Vs
1. K.PATHUMMA UMMA
... Respondent
For Petitioner :SRI.T.KRISHNANUNNI
For Respondent :SRI.K.M.SATHYANATHA MENON
The Hon'ble MR. Justice V.RAMKUMAR
Dated :11/12/2008
O R D E R
V. RAMKUMAR , J.
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S.A. No. 842 of 1997
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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
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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
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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
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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
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V. RAMKUMAR, J
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S.A. No. 842 of 1997
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11th day of December, 2008.
JUDGMENT
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