Dismissed

Annamma Kunjamma v. P.v.Cherian

Kerala HC19 Jan 2017RSA/1268/2016

Case brief

AI extract

What is this about?

While pending in the High Court of Kerala, the effective, 10-judge bench dismissed two regular second appeals contesting the remission of property suits. Relying on res judicata and prior conclusive orders by the same court, the judge held the appeals were hit by issue estoppel and dismissed them without substantive interference.

What did the court decide?

Interlocutory applications in the appeals are closed and parties shall bear their respective costs.

Annamma Kunjamma Vs P.v.Cherian — Partition | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

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THURSDAY, THE 19TH DAY OF JANUARY 2017/29TH POUSHA, 1938

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RSA.No. 1268 of 2016 (A)

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AS 132/2011 of ADDITIONAL DISTRICT COURT-I,MAVELIKKARA

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OS 354/1986 of MUNSIFF’S COURT, MAVELIKKARA

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APPELLANTS/APPELLANTS 1 & 2/DEFENDANTS 1 & 2:

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1. ANNAMMA KUNJAMMA, AGED 82 YEARS, RESIDING AT THUNDILVADAKKETHIL HOUSE, CHERUKUNNAM MURI, THEKKEKKARA VILLAGE, MAVELIKKARA-690101.

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2. KUNJUMOL AGED 53 YEARS, D/O. ANNAMMA KUNJAMMA, RESIDING AT THUNDILVADAKKETHIL HOUSE, CHERUKUNNAM MURI, THEKKEKKARA VILLAGE, MAVELIKKARA-690101.

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BY ADVS.SRI.R.V.SUJIT KUMAR SMT.AYSHA RAHMAN SRI.BINDU SREEKUMAR

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RESPONDENTS/RESPONDENTS 1 TO 8, APPELLANT NO.3 & RESPONDENTS 9 & 10/ADDITIONAL PLAINTIFFS 2,4 TO 10 & DEFENDANTS 3 TO 5:

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1. P.V.CHERIAN, S/O. P.C.VARGHESE, AGED 43 YEARS, PERUMPATTIL PUTHENVEETTIL, CHERUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT-690101.

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2. ALEYAMMA ABRAHAM, D/O. P.C.VARGHESE, AGED 60 YEARS, PERUMPATTIL PUTHENVEETTIL, CHERUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT-690101.

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RSA.No. 1268 of 2016 (A)

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3. SUSAMMA MATHEW,

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D/O.P.C.VARGHESE, AGED 57 YEARS, PERUMPATTIL PUTHENVEETTIL, CHERUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT-690101.

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4. MARIAMMA ALEXANDER,

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D/O.P.C.VARGHESE, AGED 54 YEARS, PERUMPATTIL PUTHENVEETTIL, CHERUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT-690101.

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5. SARAMMA P.V.,

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D/O.P.C.VARGHESE, AGED 51 YEARS, PERUMPATTIL PUTHENVEETTIL, CHERUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT-690101.

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6. RAICHEL VARGHESE,

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D/O.P.C.VARGHESE, AGED 47 YEARS, PERUMPATTIL PUTHENVEETTIL, CHERUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT-690101.

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7. SOSAMMA P.V.

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D/O. P.C.VARGHESE, AGED 45 YEARS, PERUMPATTIL PUTHENVEETTIL, CHERUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT-690101.

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8. DAISY VARGHESE,

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D/O. P.C.VARGHESE, AGED 40 YEARS, PERUMPATTIL PUTHENVEETTIL, CHERUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA TALUK, ALLEPPEY DISTRICT-690101.

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9. AMMINI

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D/O.ANNAMMA KUNJAMMA, AGED 50 YEARS, RESIDING AT THUNDILVADAKKETHIL HOUSE, CHERUKUNNAM MURI, THEKKEKKARA VILLAGE, MAVELIKKARA-690101.

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10. BABY

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S/O. ANNAMMA KUNJAMMA, RESIDING AT THUNDILVADAKKETHIL HOUSE, CHERUKUNNAM MURI, THEKKEKKARA VILLAGE, MAVELIKKARA TALUK-690101.

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RSA.No. 1268 of 2016 (A)

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11. KRISHNAN KUTTY, RESIDING AT THUNDILVADAKKETHIL HOUSE, CHERUKUNNAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA-690101.

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R1 TO R4 BY ADV. SRI.G.S.REGHUNATH (CAVEATOR) R5 TO R8 BY ADVS. SRI.MOHAN JACOB GEORGE(CAVEATOR) SMT.REENA THOMAS(CAVEATOR) SMT.P.V.PARVATHI(CAVEATOR) SMT.NIGI GEORGE SRI.T.K.NAVAS

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 19-01-2017, ALONG WITH RSA. 1/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/21/1/172

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B. KEMAL PASHA, J.

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................................................................ R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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............................................................... Dated this the 19^th day of January, 2017

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J U D G M E N T

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The suits involved herein have a chequered career. Originally, the appellant herein as plaintiff filed O.S.No.332/1986 before the Munsiff's Court, Mavelikkara as a simple suit for perpetual injunction restraining the defendant from trespassing into the plaint schedule property. The plaint schedule property is shown as 11 cents of property in Survey No.129/5-C of the Thekkekkara Village, Mavelikkara Taluk. Just after the filing of the said suit, the defendant in the said suit namely Cherian Varghese filed O.S.No.354/86 before the said court as a suit for recovery of possession based on title in respect of the very

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 2 :-

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same 11 cents of property in Sy.No.129/5-C of the Thekkekkara Village, which is the plaint schedule property in O.S.No.332/1986. He filed the said suit by alleging that he

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is the title holder of the property and he was in absolute possession and enjoyment of the property and that the present appellant Annamma Kunjamma was residing in a building put up by her in the 2½ cents of property situated at the north western side of the plaint schedule property. His case is that subsequently, she trespassed into the plaint schedule property and has illegally reduced that property into her possession and put up a platform there, on which she constructed a shed in the above said 11 cents of property, and has started occupying it.

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Both the suits were jointly tried before the Munsiff's Court, Mavelikkara. Initially, the Munsiff's Court, Mavelikkara decreed O.S.No.332/1986 and dismissed O.S.No.354/1986. Aggrieved by the same, Cherian Varghese preferred A.S.No.11/1990 as well as A.S.7/90

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R.S.A. No. 1268 of 2016 &

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R.S.A. No. 1 of 2017

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-: 3 :-

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before the Additional District Court, Mavelikkara. Both the appeals were dismissed. The matters were taken up before this Court in Second Appeals as S.A. No.148/1996 against A.S.No.11/90 and S.A.No.202/1996 as against A.S.No.7/1990.

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Respondents 1 to 8 are the legal representatives of deceased Cheriyan Varghese. This Court, in the said second appeals, held that the properties covered by Exts.A1 and A2 has to be located and the 2½ cents of property admittedly being occupied by the appellant herein has also to be located. It was made clear therein that in case the said 2½ cents of property being occupied by the appellant comes within the 11 cents of property covered by Ext.A1, the respondents 1 to 8 herein are not entitled to get a decree for the said 11 cents; whereas they are entitled to get a decree for recovery of possession of the balance extent of property from that 11 cents of property. With the said directions, this Court remanded both the suits to the trial court.

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 4 :-

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The trial court thereafter dismissed

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O.S.No.332/1986 and decreed O.S.No.3541986 in terms of the plaint. Thereafter, two appeals were filed by challenging the said judgments and decrees as A.S.No.132/2011 and A.S.No.135/2011. The Additional District Judge, after hearing the said appeals, allowed the appeals and remitted both the suits once again to the trial court by finding that the trial court had not adhered to the spirit of the remand order passed by this Court. Aggrieved by the said remand order, the respondents 1 to 8 herein approached this Court through F.A.O. No.16/2014 and F.A.O. No.17/2014. The appellant herein has preferred Cross Objection No.54/2015 as well as Cross Objection No.55/2015. The learned Single Judge of this Court heard the matter in extenso and allowed the FAOs. and dismissed the Cross Objections vide judgment dated 20.05.2015. Through the said judgment, the lower appellate court was directed to examine whether the 2½ cents of property being occupied by the appellant

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 5 :-

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comes within the 11 cents of property covered by Ext.A1 or not. It was held therein that in case the said 2½ cents of property comes within the 11 cents of property covered by Ext.A1, the respondents 1 to 8 herein are not entitled to recover the total extent of 11 cents of property; whereas they can recover the balance extent of property after leaving 2½ cents of property. It was also held that in case the said 2½ cents of property is not coming within the said 11 cents of property and out side the properties covered by Exts.A1 and A2, then the respondents 1 to 8 would be entitled to get a decree for recovery of the said 11 cents of property as a whole.

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In the common judgment in the FAOs and Cross Objections, this Court has clearly found that the properties involved in both the suits are one and the same and that the appellant has no case that she is not in possession of the said 11 cents of property at present. It has been clearly concluded that there cannot be any dispute with regard to

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 6 :-

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the identity of the said 11 cents of property. Therefore, it seems that the question of identity of the said plaint schedule property having an extent of 11 cents of property in both the suits has clearly been concluded and is no more open to challenge.

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It is the case of respondents 1 to 8 herein that originally Kamalamma Kunjamma became entitled to 50 cents of property, set apart as 9^th schedule in Ext.A14 partition deed of the year 1119 ME. Out of the said 50 cents of property, her predecessor-in-interest purchased 25 cents of property through Ext.A2 sale deed. Thereafter, he purchased 11 cents of property, which is the plaint schedule property from the western side of the said 25 cents out of the 50 cents. Subsequently, late Cheriyan Varghese, the father of respondents 1 to 8 had purchased two more cents of property situated at the eastern side of the said 25 cents of property through Ext.A15 sale deed.

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It has clearly come out from Ext.C3(a) plan that

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 7 :-

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the Commissioner has correctly located and identified the said 2½ cents of property being claimed by the appellant as plot KHIJ and similarly, the Commissioner has correctly identified 50 cents of property originally devolved on Kamala Kunjamma as ABCDEFGH, out of which, the Commissioner has correctly located and identified the 11 cents of property which is the plaint schedule property covered by Ext.A1 as ABGHI. The 25 cents of property covered by Ext.A2 is also correctly located and identified as BCFG.

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Heard the learned Senior Counsel

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Sri.Krishnanunni, for the appellants, the learned counsel Sri. G.S. Raghunath and Sri. Mohan Jacob George for respondents 1 to 8.

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The learned Senior Counsel has attempted to canvass an argument that the trial court has failed to comply with the directions in the first remand order. The said question cannot be considered at present in view of the

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 8 :-

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judgment of this Court in FAOs and Cross Objections mentioned earlier. In the judgment passed by this Court, the earlier remand order was also considered at length, and finally this Court had arrived at the conclusion that the question remains to be considered in the matter is the identification of 2½ cents of property and also the question as to whether the 2½ cents of property comes inside the 11 cents or not. The learned Senior Counsel has argued that in the last remand order passed by this Court, this Court had deviated from the earlier remand order and has confined the matter to the identification of 2½ cents property alone. In fact, this Court has come to a satisfactory conclusion in the last remand order, after making a threadbare examination of the earlier remand order as well as the observations made by the courts below. When the judgment in the FAOs and Cross Objections have become final, those aspects do not weigh with at present in any manner.

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The learned Senior Counsel has argued that the

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 9 :-

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11 cents of property, which is described as the building, belongs to the appellant and the said 2½ cents of property is, in fact, noted by the Commissioner as one situated in the 11 cents of property. Both the learned counsel appearing for respondents 1 to 8 have clearly pointed out that initially the appellant was residing in the building situated in 2½ cents of property and subsequently she trespassed into the 11 cents of property, illegally reduced that property into her possession and put up a platform and a shed, and thereafter she occupied the said shed. That structure is the one which is shown as the building in 11 cents of property by the Commissioner. Both the learned counsel for respondents 1 to 8 have pointed out that the said act of the appellant had necessitated the institution of O.S.354/86.

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Both the learned counsel for respondents 1 to 8

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have taken this Court through the depositions of PW1. PW1 has clearly deposed that he was in possession of 11 cents of property and the appellant was in occupation of just 2½

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 10 :-

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cents of property situated at the north western side of the said 11 cents of property. He has further deposed that she

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was residing in the said 2½ cents of property and she trespassed into the said 11 cents of property and put up a platform and a shed in the said 11 cents of property. On going through the evidence, the Commissioner's report, plan and on hearing either side, this Court is satisfied that the building presently occupied by the appellant shown in the Commissioner's report and Ext.C3(a) plan is nothing but the structure styled as platform and shed constructed by the appellant, as averred in O.S.No.354/86. The identity of the plaint schedule property is not at all in question now. It seems that she has abandoned her old building in the 2½ cents of property and is presently residing in the 11 cents of property covered by Ext.A1.

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It has come out that the lower appellate court has

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presently dealt with the matter correctly and has confirmed the judgment and decree passed by the trial court after

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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-: 11 :-

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remand. On account of the concurrent findings entered by

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both the courts below, this Court does not see anything to interfere with the said concurrent findings entered by the trial court as well as the lower appellate court, because of the fact that these questions were already concluded by this Court in the first as well as the second remand order. Apart from the above, both the learned counsel for respondents 1 to 8 have pointed out that the question presently set up by the appellants in these two appeals were the very same questions raised by her through the Cross Objection Nos.54/2015 and 55/2015. Both the said Cross Objections were dismissed by this Court. The matter has become concluded and the same is not more open to challenge. Over and above it, the present challenge through these second appeals are clearly hit by the principles of res judicata . Apart from all these, no question of of law emerges through the judgment passed by the trial court or the judgment passed by the lower appellate court.

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R.S.A. No. 1268 of 2016 & R.S.A. No. 1 of 2017

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Therefore, the same are not liable to be interfered with and hence these second appeals fail and are only to be dismissed at the threshold, and I do so.

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In the result, both these Second Appeals are dismissed. All the interlocutory applications in these appeals are closed. In the nature of these appeals, the parties shall bear their respective costs.

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Sd/- B. KEMAL PASHA, JUDGE.

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ul/-

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// true copy //

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P.S. to Judge.

Annamma Kunjamma v. P.v.Cherian

Case brief

What is this about?

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Annamma Kunjamma v. P.v.Cherian

Case brief

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