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Eapen Eapen Vs. Abdul Majeed Shanavas and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 691 of 1981
Judge
Reported in(1981)3SCC31
AppellantEapen Eapen
RespondentAbdul Majeed Shanavas and ors.
DispositionCase Remanded
Excerpt:
- [ a. varadarajan and; v.d. tulzapurkar, jj.] -- partition — plan submitted to court — objection raised by the appellant before trial court that the plan would cause difficulties for him to go to the backyard of his house not considered and a final decree passed in accordance with the plan -- it will be open to the appellant to apply to the trial court to indicate what additional width of the passage he would like to have for having access to the backyard of his house. the trial court would also consider any objections that might be raised by the respondents herein. subject to these observations the final decree as passed is confirmed......such an objection was, in fact, raised by him. but it seems that it was not considered and a final decree was passed in accordance with the plan ex. c-5(a). we feel that the final partition decree passed in terms of this plan need not be disturbed subject to such modification being made therein as might leave a reasonable passage to the appellant running from west to east so that he experiences no difficulty in having access to the backyard of his house up to the end, for which the existing passage lying to the north of property allotted to the respondent-plaintiffs might haveto be widened. we, therefore, send the matter back to the trial court which passed the final decree to consider the aforesaid question. it will be open to the appellant to apply to the trial court to indicate.....
Judgment:

V.D. TULZAPURKAR, J.

1. Special leave granted.

2. Having heard counsel on either side we are satisfied that the plan marked as Ex. C-5(a) was correctly accepted and adopted by the lower courts to effect partition. It is, however, not correct to say that when this plan was objected to by the appellant he did not raise any objection that the acceptance of that plan would cause difficulties for him to go to the backyard of his house. Such an objection was, in fact, raised by him. But it seems that it was not considered and a final decree was passed in accordance with the plan Ex. C-5(a). We feel that the final partition decree passed in terms of this plan need not be disturbed subject to such modification being made therein as might leave a reasonable passage to the appellant running from west to east so that he experiences no difficulty in having access to the backyard of his house up to the end, for which the existing passage lying to the north of property allotted to the respondent-plaintiffs might have

to be widened. We, therefore, send the matter back to the trial court which passed the final decree to consider the aforesaid question. It will be open to the appellant to apply to the trial court to indicate what additional width of the passage he would like to have for having access to the backyard of his house. On such an application being made by the appellant it will be open to the trial court to consider whether any such additional width of the passage is necessary and, if so, to what extent and subject to what adjustment. The trial court would also consider any objections that might be raised by the respondents herein. Subject to these observations the final decree as passed is confirmed. The appeal is disposed of accordingly.


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