Appeal against remand order in partition suit dismissed. Quadrature noted that plaintiff purchased two cents adjoining public lane post-acquisition of half share for access. Court treated it as way available for entire estate. Remand order upheld.
The appeal was dismissed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
TUESDAY, THE 5TH DAY OF JULY 2022 / 14TH ASHADHA, 1944
FAO (RO) NO. 111 OF 2018
AGAINST THE JUDGMENT AND DECREE DATED 24/02/2014 IN OS 774/2009 OF
II ADDITIONAL SUB COURT,KOZHIKODE
AGAINST THE JUDGMENT AND DECREE DATED 24/01/2018 IN AS 1/2016 OF
ADDITIONAL DISTRICT COURT - IV, KOZHIKODE
APPELLANT/DEFENDANT:
E.P.BINDU, D/O.PHALGUNAN,
ELAVANAPOYIL HOUSE, KANNANKARA P.O.,
KOZHIKODE-673001.
BY ADV SRI.E.NARAYANAN
RESPONDENT/PLAINTIFF:
M.P.SURENDRAN, S/O.SAMIKUTTY,
MARAMPARAMBATH HOUSE, PALATH, CHELANNUR P.O.,
KOZHIKODE, PIN-673616.
BY ADVS.
SMT.MAYA CHANDRAN
SRI.M.PROMODH KUMAR
THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP
FOR HEARING ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
FAO (RO) NO. 111 OF 2018
2
JUDGMENT
As against the final decree passed, an appeal was
preferred by the plaintiff before the first appellate
court, in which an order of remand was passed instead
of addressing the issue involved in the final decree
stage. The preliminary decree is one for partitioning
the property and for separation of 1/2 share each by
metes and bounds among the plaintiff and the defendant.
In the final decree stage, the property was divided
into 1/2 share each. It is reported that there is a
public lane starting from the southern side up to the
south eastern corner of the plaint schedule property.
From there, the lane further proceeds towards
east-south in an inclined position, which is the
subject matter of a sale deed in favour of the
plaintiff. It was purchased by the plaintiff after the
acquisition of 1/2 right over the entire property. The
property covered by the said sale deed No.1113/2008 is
lying in continuation of public lane through the south
eastern side of the plaint schedule property. In so
FAO (RO) NO. 111 OF 2018
3
far as the subject of the partition is concerned, in
the prior deed, no way was set forth and no provision
was made for means of access. This might be the reason
why the two cents of property lying adjoining to the
public lane was purchased by the plaintiff so as to
provide a means of access. Necessarily, it has to be
considered as the way available to the entire estate.
It is for adjudicating that issue, a remand order was
passed by the first appellate court. As such, the
order of remand deserves no interference. The parties
shall appear before the trial court on 25/07/2022.
The appeal is dismissed accordingly. No costs.
Sd/-
P.SOMARAJAN
JUDGE
msp
2 issues framed by the court
Whether the appellate court was justified in remanding the matter to re-adjudicate the mode of access and means of access to the property.
Whether a sale deed purchased after acquiring half share for means of access can be considered as available way to the entire estate.
E.P. Bindu
M.P. Surendran
P. Somearajan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court