IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 129 of 2010()
1. BABY M.K., D/O.LATE KUMARA PILLAI,
... Petitioner
Vs
1. DR.M.K.MANI, S/O.LATE KUMARA PILLAI,
... Respondent
2. M.G.CHANDRAN, S/O.LATE KUMARA PILLAI,
3. M.K.MOHANAKUMAR, D/O.LATE KUMARA PILLAI,
4. M.K.SEETHALAKSHMI,
For Petitioner :SRI.K.MOHANAKANNAN
For Respondent :SRI.T.K.VENUGOPALAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/06/2010
O R D E R
THOMAS P.JOSEPH, J.
====================================
C.R.P. No.129 of 2010
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Dated this the 8th day of June, 2010
O R D E R
After the respective plots allotted to parties were delivered
over to them as per the final decree petitioner herein filed
E.A.No.783 of 2009 for delivery of the plots set apart as pathway
for petitioner and respondent Nos.3 and 4 in the commission report
and plan which were accepted in the final decree. Executing court
vide order dated 10.02.2010 held that in the final decree
pathways were set apart for common use of the sharers and hence
petitioner is not entitled to get delivery of the said pathways.
Accordingly application filed by petitioner was dismissed. That
order is under challenge in this revision petition. Learned counsel
for petitioner and respondent No.4 would contend that executing
court has proceeded on the wrong assumption that the final
decree provided that the pathways set out by the Advocate
Commissioner are for common use of the sharers and on that
assumption the application was dismissed. Learned counsel have
taken me through the copy of report and plan submitted by the
Advocate Commissioner and the final decree.
C.R.P. No.129 of 2010
-: 2 :-
2. It is seen from Annexure A1, report of the Advocate
Commissioner that ‘D’ schedule referred to therein (marked in
blue colour in the sketch) was set apart as way for access to plots
“B, G, and F” allotted to the petitioner and respondent Nos.3 and
4. Paragraph 6 of Annexure A1, report states that ‘F’ schedule
pathway referred to therein was provided for access to plots ‘C’
and ‘D’ which were allotted to respondent Nos.4 and 5. In
paragraph 7 it is stated that plot ‘G’ was set apart as way. In
page 2 of the Commissioner’s report it is stated that the plot
allotted to respondent No.2 abutted the public road while pathway
marked as plot ‘G’ was set apart for access to the other sharers.
In paragraph 4 of the final decree objection raised by respondent
No.2 as to the division was found untenable and hence not
accepted. The final decree states that commission report and
plan are accepted and final decree is passed accordingly. In
other words, allotment of pathways referred to in the plan as
reported in Annexure A1, report was accepted by the court below
while passing the final decree. Executing court was bound by the
direction in the final decree accepting the report and plan as
above stated. Executing court therefore was not correct in
holding that pathways were set apart for common use of all the
sharers. As such petitioner is entitled to get delivery of the
C.R.P. No.129 of 2010
-: 3 :-
pathway as requested for in E.A. No.783 of 2009.
Resultantly, Revision Petition is allowed setting aside order
dated 10.02.2010 on E.A. No.783 of 2009. That application is
allowed. Executing court shall deliver the pathway as prayed for
in E.A. No.783 of 2009.
THOMAS P. JOSEPH, JUDGE.
vsv