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DILEEP KUMAR, AGED 44 YEARS, GOVT v. KESAVAN NAIR, AGED 86 YEARS, NEPHEW - RSA No. 586 of 2007  RD-KL 14415 (30 July 2007)
IN THE HIGH COURT OF KERALA AT ERNAKULAMRSA No. 586 of 2007()
1. DILEEP KUMAR, AGED 44 YEARS, GOVT.
2. K.P.RAMA, AGED 38 YEARS, W/O.DILEEP
1. KESAVAN NAIR, AGED 86 YEARS, NEPHEW
2. SASEENDRAN, AGED 52 YEARS, S/O.KESAVAN
3. BALAKRISHNAN NAIR, AGED 75 YEARS,
4. DEVAKI AMMA, AGED 70 YEARS,
5. SIVASANKARAN, S/O.KESAVAN NAIR,
6. MALINI, D/O.KESAVAN NAIR,
7. CHANDRIKA,D/O.KESAVAN NAIR,
For Petitioner :SRI.P.C.HARIDAS
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
O R D E R
M.SASIDHARAN NAMBIAR, J............................................ R.S.A.No. 586 OF 2007 ............................................
DATED THIS THE 30th DAY OF JULY, 2007
Plaintiffs in O.S.412 of 1996 on the file of Munsiff Court, Perumbavoor are the appellants. Defendants are respondents. Appellants instituted the suit seeking a decree for declaration of fixation of boundary and mandatory and prohibitory injunction. Case of appellants is that under Ext.A2 partition the properties were divided by the family of respondents and first respondent was alloted B schedule, 3rd defendant was alloted C schedule and schedules D, E and F were alloted to the daughters of first respondent and A schedule was alloted to the parents and while dividing the properties and alloting different properties to the sharers, a way is provided which is set apart for the use of all the sharers and included the property in the A schedule and under Ext.A1 assignment deed dated 22.2.1994 appellants purchased plaint A schedule property from first respondent and therefore plaint A schedule property belongs to them and is in their possession and plaint B schedule property is the way provided under Ext.A2 partition deed and respondents are not entitled to obstruct the way and they have planted rubber trees RSA 586/2007 2 in plaint B schedule way causing obstruction to the way and therefore appellants are entitled to a decree for declaration of right of way and for a permanent prohibitory injunction to cut and remove the trees standing in plaint B schedule property. Respondents resisted the suit contending that there is no necessity for any way as described in plaint B schedule property as on the western side of the plaint A schedule property purchased by the appellants, there is a tarred road available and the sharers are now not using the plaint B schedule way. It was admitted that Ext.A2 provides a right to use the existing way, by all sharers but contended that they did not cause any obstruction and appellants are not entitled to the decree sought for.
2. Learned Munsiff, on the evidence of PWs 1 to 3, Dws 1 & 2, Ext.C1 to C3, Ext.A1 and A2 and Ext.B1 to B3 upheld the right of way claimed by appellants and declared that appellants have a right of way over plaint B schedule property as provided under Ext.A2. A decree for mandatory injunction directing respondents to remove the trees standing in the plaint B schedule way as marked by the Commissioner was also passed. Respondents 1 and 2 challenged the decree and judgment before Sub Court, North Paravur in A.S.77 of 2002. The learned Sub RSA 586/2007 3 Judge, on reappreciation of evidence, found that what is provided under Ext.A2 is a right to use the way which was existing at that time and which is made available to all the sharers and being an assignee from one of the sharers, appellants are entitled to use the way. But learned Sub Judge found that evidence establish that 18 links pathway was not existing at that time as there were standing trees at that time in the property and held that appellants are only entitled to get a declaration of right of way as existed and as provided in Ext.A2 partition deed. It is challenged in the second appeal.
3. Learned counsel appearing for the appellants was heard. The argument of the learned counsel was that first appellate court should not have interfered with the discretion exercised by the trial court as appreciation of evidence was not perverse. It was argued that when Ext.A2 partition deed provides for a way having a width of 18 links, first appellate court should not have interfered with the decree granted by restricting the way as it existed and therefore the decree and judgment of first appellate court are to be set aside and that of trial court are to be restored.
4. On hearing learned counsel appearing for appellant, I do RSA 586/2007 4 not find any substantial question of law involved in the appeal.
5. What is provided under Ext.A2 is a right of way to use the existing way in the properties divided thereunder and it is made available to all the sharers, though the property was alloted the share of the parents including it in the A schedule. Ext.A2 does not provide that a new pathway is to be carved out or made available consequent to the provision made in the partition deed. Only a right to use existing way which has been described in A schedule is made available to all the sharers. First appellate court, as per the decree provided that appellants are entitled to the right of way as provided under Ext.A2 partition deed. In such circumstances I do not find any reason to interfere with the decree. As no substantial question of law is involved in the appeal, appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGElgk/-
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