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Judgment
Thomas P. Joseph, J.—Heard. Admit. The following substantial question of law is framed:
Whether the division of property as per Ext.C1(b) accepted by the first appellate court is equitable?
Respondents appear through counsel.
In view of the substantial question of law I have framed and since I have been given copy of Ext.C1(b), plan accepted by the trial and the first appellate courts and appended to the final decree and Annexures-AI and AI(a), memo and the objection filed by the parties in the first appellate court it is not necessary to call for the entire records.
Defendant in O.S.No. 1168 of 2001 of the Additional Munsiff''s Court, Kollam is the appellant before me, challenging the final decree for partition passed on I.A.No. 4748 of 2005 and confirmed by the learned II Additional District Judge, Kollam in A.S.No. 325 of 2008.
A preliminary decree was passed on 28.05.2005 allotting half share to the respondents/plaintiffs and the remaining half share to the appellant/defendant. Respondents filed I.A. No. 4748 of 2005 for passing a final decree. The Advocate Commissioner inspected the property and submitted Ext.C1 series. Ext.C1(b) is the plan based on possession of the property within well defined boundaries. Ext.C1(a) is the plan based on resurvey. The appellant preferred objection to Ext.C1 series. She contended that the property could be more conveniently divided in the north-south direction than in the east-west direction done by the Advocate Commissioner and that the value of the property assessed is not correct. Certain other contentions were also raised.
The Advocate Commissioner reported in Ext.C1 that a division in the north-south direction will not be convenient for user of the portions by the parties and that division in the east-west direction is more appropriate and convenient.
Learned Munsiff in paragraph 3 of the order observed that the parties have no dispute over possession of the property (to be partitioned) lying within specific boundaries and hence Ext.C1(b), plan could be accepted. Learned Munsiff also found that a division of the property in the east-west direction is more convenient than a division, north-south. Accordingly, Ext.C1 (b), plan was accepted and a final decree was passed.
The appellant/defendant challenged that order in appeal. In the first appellate court, a contention was raised by the appellant that if Ext.C1(b), plan with the division in the east-west direction is accepted, the appellant would have no access to the plot allotted to her. Taking note of that objection of the appellant, respondents filed a memo (marked as Annexure-AI in this proceeding) dated 04.08.2011 in the first appellate court agreeing to provide a four links wide way along the eastern portion of the plot allotted to them in Ext.C1(b) for access to the plot allotted to the appellant. The appellant preferred Annexure-AI(a), objection to that memo.
The learned Additional District Judge allowed the appeal in part and modified the final decree to the extent that to the property set apart to the share of the appellant as per Ext.C1(b), plan a pathway will be provided through the eastern side of the plot allotted to the respondents as stated in Annexure-AI, memo which was appended to the decree. The first appellate court held that the appellant is entitled to have a boundary wall or fence separating that pathway from the remaining portion allotted to the respondents to have privacy.
The appellant is not satisfied even with the modified final decree and has come up in Second Appeal.
The learned counsel has contended that the plot allotted to the appellant as per Ext.C1(b) takes in even a portion which does not belong to the party. The learned counsel submits that the plot shown as CHDG in Ext.C1(b) does not belong to the parties and hence it is not partiable. It is the further contention of the learned counsel that the said plot comes almost to a quarter cent and if excluded from the share of the appellant, she will get a reduced extent when compared to the respondents. It is also the submission of the learned counsel that there is no proper measurement of the property and that it is without locating the building situated in the six cents belonging to the appellant towards east of the decree schedule property that the first appellate court has provided for a four links wide way along the eastern side of the plot allotted to the respondents. The learned counsel further submits that at any rate, even as per the modified final decree passed by the first appellate court, the appellant has only a right of easement by grant over the four links wide way provided and that appellant does not get exclusive right over the said way.
The learned counsel for the respondents has submitted that the division was made by the Advocate Commissioner based on possession of the property within the well defined boundary and that possession within the boundaries was not disputed even by the appellant in the trial court as referred to by the learned Munsiff in paragraph 3 of the order. The learned counsel submits that if the grievance of the appellant is that the CHDG plot belongs to strangers and the appellant would not get title over the property, respondents are prepared to convey title over the four links wide way provided by the first appellate court in the modified decree, to the appellant and that is sufficient to redress the grievance of the appellant. It is also pointed out by the learned counsel that along the southern side of the six cents belonging to the appellant, the settlement deed relating to that property provides a right of access to the respondents to the plot allotted to them in the final decree.
I have heard the contentions of the learned counsel on both sides and perused Ext.C1(b). In Ext.C1(b) the property available for partition is identified by the Advocate Commissioner as ABHCDGEJFA. The plot allotted to the appellant is towards the northern side (east-west) and is marked as JIBHCDGEJ and the plot allotted to the respondents is AIJF on the southern side appellate courts that a division of the property north-south may cause inconvenience to the parties.
It is seen that there is a dilapidated structure falling in the plots allotted to the appellants and respondents and even stretching into the six cents belonging to the appellant on the further east. The four links wide way agreed to by the respondents as per Annexure-AI, memo would cut across a portion of the dilapidated structure falling in the plot allotted to the respondents. The learned counsel for the respondents submits that respondents are prepared to clear that portion of the dilapidated structure and set out the four links wide way as agreed in Annexure-AI, memo and accepted by the first appellate court in its judgment.
A further contention that the learned counsel has advanced is that the plot CHDG in Ext.C1(b) belongs to the strangers. But it would appear that before the learned Munsiff, there was no objection to the possession of the decree schedule property lying within specified boundaries. Even then, taking into account the apprehension of the appellant that she might not get title of plot CHDG, the learned counsel for the respondents has agreed before me that the respondents are prepared to convey their title over the four links wide way referred to in Annexure-AI, and accepted by the first appellate court in favour of the appellant. I am inclined to think that the said suggestion if accepted would redress that grievance of the appellant as to her not possibly having title over CHDG plot.
It is further argued by the learned counsel for the appellant that location of the building in the six cents belonging to the appellant towards east of the decree schedule property is such that there would not be sufficient space left on the southern side to give a right of access by way of grant to the respondents for access to the plot allotted to them in Ext.C1(b). So far as that contention is concerned, I am not inclined to attach any weight since right of easement is granted as per the settlement deed (the learned counsel for appellant states that the width is not stated in the settlement deed). I must also notice that as per the alternative suggestion made by the appellant, if the decree schedule property is divided in the north-south direction, according to the appellant she is prepared to provide a right of access along the southern side of the six cents belonging to her exclusively. That suggestion alone would show that there is sufficient space on the southern side of the six cents belonging to the appellant to provide access to the respondents for access to the plot allotted to them as per Ext.C1(b). Hence that plea of the learned counsel cannot be accepted.
As it is, acceptance of the suggestion made by the learned counsel on behalf of the respondents that the respondents are prepared to convey their title and possession of the four links wide way referred to in Annexure-AI and accepted by the first appellate court is sufficient to make the division equitable and more convenient to the appellant as well. I do not find any reason to interfere with the judgment and decree of the first appellate court in other respects. The substantial question of law framed is answered as above. In the result the Second Appeal is allowed in part to the following extent:
i. In further modification of the final decree passed by the first appellate court, it is directed that the four links wide way referred to in Annexure - AI, memo and accepted by the first appellate court shall be ploted and set out along the eastern portion of the plot allotted to the respondents as per Ext.C1 (b).
ii. If it becomes necessary for removal of the old structure falling in the plot allotted to the respondents as per Ext.C1(b) for setting out that way, respondents shall do that at their expenses.
iii. It is directed that the four links wide way thus ploted in Ext.C1(b) will form part of the share allotted to the appellants as per Ext.C1(b).
iv. In case the respondents do not set out the four links wide way as above stated, it will be open to the appellants to do so in execution of the final decree.
v. In other respects, the final decree as modified by the first appellate court will stand.
All pending interlocutory applications will stand dismissed.