Partly allowed

Eldho K. Thomas v. Naveen B. Parappattu

Kerala HC18 Nov 2020FAO (RO)/18/2020

Case brief

AI extract

What is this about?

The High Court set aside a first appellate court order for exceeding jurisdiction. The High Court held orders under the 1893 partition legislation for lease operation were inherently non-appealable and thus illegal to challenge directly.

What did the court decide?

F.A.O.(RO)Nos 14/2020 and 18/2020 allowed; A.S.Nos 43/2019 and 44/2019 remitted; O.P.(C)Nos 1544/2019 and 1547/2019 dismissed.

Eldho K. Thomas Vs Naveen B. Parappattu — Partition | Kerala HC (2020)

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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 T.V.ANILKUMAR

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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OP(C).No.1544 OF 2019

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AGAINST THE JUDGMENT AND DECREE DATED 13.11.2018 IN O.S.NO.139/2016 OF MUNSIFF COURT,MUVATTUPUZHA

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PETITIONER:

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1 ELDO.K.THOMAS, AGED 63 YEARS,S/O. THOMAS, KAVUNGUMPILLIL HOUSE,PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686692.

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2 VARGHESE,

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AGED 65 YEARS, S/O.JOSEPH, KUNNATH HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686692.

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BY ADV. SRI.ALEXANDER JOSEPH

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RESPONDENT:

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NAVEEN.B.PARAPPATTU, S/O.LATE BINU, AGED 32, PARAPPATTU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686692.

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BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH FAO (RO).14/2020, FAO (RO).18/2020, OP(C).1547/2019, THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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-:2:-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶19

PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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FAO (RO).No.14 OF 2020

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AGAINST THE JUDGMENT DATED 10-01-2020 IN A.S.NO.44/2019 OF SUB COURT, MUVATTUPUZHA

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APPELLANTS/ RESPONDENTS/PETITIONERS/ PLAINTIFFS:

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1 ELDHO.K.THOMAS, AGED 63 YEARS, S/O.THOMAS,KAVUNGUMPILLIL HOUSE, PINDIMANA KARA,PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681.

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2 VARGHESE, AGED 66 YEARS, S/O.JOSEPH,KUNNATHU HOUSE,PINDIMANA KARA,PINDIMANA VILLAGE,KOTHAMANGALAM TALUK686681.

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BY ADVS.SRI.ALEXANDER JOSEPH SMT.TERESA C. JOSEPH

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RESPONDENT/ APPELLANT/ RESPONDENT/ DEFENDANT:

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SARAMMA, W/O LATE BINU,PARAPPATTU HOUSE, PINDIMANA KARA,PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681.

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BY ADV. SRI.A.BALAGOPALAN

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH FAO (RO).18/2020, OP(C).1544/2019, OP(C).1547/2019, THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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-:3:-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶35

PRESENT

¶36

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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FAO (RO).No.18 OF 2020

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AGAINST THE JUDGMENT DATED 10-01-2020 IN A.S.NO.43/2019 OF SUB COURT, MUVATTUPUZHA

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APPELLANTS/ RESPONDENTS/ PETITIONERS/ PLAINTIFFS:

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1 ELDHO K. THOMAS, AGED 63 YEARS, S/O.THOMAS, KAVUNGUMPILLIL HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681

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2 VARGHESE, AGED 66 YEARS, S/O.JOSEPH, KUNNATHU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681

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BY ADVS.SRI.ALEXANDER JOSEPH

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SMT.TERESA C. JOSEPH SMT.AKHILASREE BHASKARAN SRI.M.V.SABU RESPONDENT/APPELLANT/ RESPONDENT/ DEFENDANT:

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NAVEEN B. PARAPPATTU, AGED 33 YEARS, S/O.LATE BINU, PARAPPATTU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK-686681

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BY ADVS. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH FAO (RO).14/2020, OP(C).1544/2019, OP(C).1547/2019, THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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-:4:-

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶51

PRESENT

¶52

THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

¶53

WEDNESDAY, THE 18TH DAY OF NOVEMBER 2020 / 27TH KARTHIKA, 1942

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OP(C).No.1547 OF 2019

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AGAINST THE JUDGMENT AND DECREE DATED 24.10.2018 IN O.S. NO.137/2016 OF MUNSIFF COURT,MUVATTUPUZHA

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PETITIONER:

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1 ELDHO.K.THOMAS, AGED 63 YEARS, S/O.THOMAS KAVUGUMPILLIL HOUE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK 686 692.

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2 VARGHESE, AGED 65 YEARS, S/O. JOSEPH, KUNNATH HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE KOTHAMANGALAM TALUK 686 692.

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3 GEORGE MATHEW, AGED 63 YEARS, S/O. MATHEW, PARAPPATTU HOUSE PINDIMANA KARA, PINDIMANA VILLAGE KOTHAMANGALAM TALUK 686 692.

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BY ADVS.SRI.ALEXANDER JOSEPH SMT.TERESA C. JOSEPH SMT.AKHILASREE BHASKARAN

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RESPONDENT:

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SARAMMA,

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AGED 55 YEARS, W/O. LATE BINU, PARAPPATTU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, KOTHAMANGALAM 686 692.

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BY ADV. SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN SRI.M.N.MANMADAN SRI.M.S.IMTHIYAZ AHAMMED SMT.P.SEENA

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2020, ALONG WITH FAO (RO).14/2020, FAO (RO).18/2020, OP(C).1544/2019, THE COURT ON 18.11.2020 DELIVERED THE FOLLOWING:

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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Dated this the 18^th day of November,2020

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C O M M O N J U D G M E N T

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F.A.O.(RO)No.14/2020 and O.P.(C)No.1547/2019 are filed by plaintiffs in O.S.No.137/2016 on the file of the Munsiff Court, Muvattupuzha. Plaintiffs in O.S.No.139/2016 before the same court are authors of F.A.O(RO) No.18/2020 and O.P. (C) No.1544/2019.

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The plaintiffs in both suits are almost the same. The defendant in each suit is different. Both suits for partition were decreed and preliminary decrees for partition and separate possession were passed on the same day by the Munsiff Court, Muvattupuzha.

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In O.S.No.137/2016, there are three schedules namely 'A', 'B' & 'C' in which ¾ share was allowed in favour of the plaintiffs and remaining ¼ share was allowed to the defendant, who is widow of one 'Binu'. In O.S.No.139/2016, there are two schedules namely, 'A' and 'B' in respect of which, half share was declared in favour of plaintiffs and remaining half share to the defendant, who is the son of 'Binu'.

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The preliminary decrees in both suits

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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have become final and the plaintiffs in the suits filed final decree applications in their respective suits before the Munsiff court. During the pendency of the final decree application in O.S.No.137/2016, plaintiffs filed I.A.No.330/2019 seeking an order for sale of the decree schedule properties contending that 'A', 'B', 'C' schedule items were not capable of physical division, since the items were entirely covered by buildings therein. This was opposed by the defendant.

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Likewise in O.S.No.139/2016 also, a similar petition for conducting sale under the provisions of the Partition Act, 1893(for short, 'the Act') was filed in respect of 'A' and 'B' schedule properties which also the defendant in the suit stoutly opposed. As per separate orders passed, I.A.Nos.330/2019 and 329/2019 were allowed on the same day, accepting the report of the Advocate Commissioner that properties were not capable of physical division because of lie of the buildings in each of the items of properties.

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Being aggrieved by the orders passed on 17.07.2019, the plaintiffs filed A.S.Nos.44/2019 and 43/2019 against the respective orders of the court below. The appellate court was not pleased

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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with the report of the Advocate Commissioner and the finding that in the report, the properties were incapable of physical division. It expressed its opinion that a clear picture about the possibility or otherwise of the physical division of the properties could be explored, only upon the items being surveyed with the aid of plan and parties heard thereafter. Both orders were set aside and matter was remitted back to the court below for fresh consideration of the issue.

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Challenging the respective remand orders in A.S.Nos.44/2019 and 43/2019, respectively F.A.O(RO) Nos.14/2020 and 18/2020 were filed.

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It is an admitted fact that the items of properties in both suits were outstanding on lease in favour of the third parties, who were conducting toddy shop in the buildings. The period of lease expired and there was a move on the side of the plaintiffs for extending the period of lease allowing the lessee to continue the business. Respective defendant in each suit was not inclined to consent to the renewal of lease. Following the resistance of the defendant in the respective suits, the decree holders in O.S.No.137/2016 filed I.A.No.683/2019 seeking

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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permission of the court for conducting toddy shop business on a rent being fixed by the court. This application was heavily opposed by the defendant. Similar application as I.A.No.679/2019 was filed in O.S.No.139/2016 by the decree holders which also the defendant in that suit opposed. The court below accepted the argument of the defendant that a co-owner cannot be compelled to consent for renewing lease against his will. Both petitions were dismissed by separate orders in the respective suits on 04.04.2019. Challenging these orders, the plaintiffs in O.S.Nos.137 & 139/2016 filed O.P.(C)Nos.1547/2019 and 1544/2019 respectively.

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I heard the learned counsel for the appellants/petitioners and respondents.

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So far as orders issued by the court below refusing permission to renew the lease are concerned, I do not find any illegality in the impugned orders dated 04.04.2019. It is trite law that a co-owner cannot be compelled to consent to a lease arrangement or its renewal against his own will. Court cannot step into the shoes of the unwilling co-sharer and order renewal of lease. Situation may be different when a receiver is

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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appointed for the property to take care of the income and profits with liability to account for the same. That position does not arise in the present cases before me. Therefore, orders dated 04.04.2019 dismissing I.A.Nos.683 & 679/2019 are confirmed.

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The learned counsel for the appellants in F.A.O.(RO)Nos.14 and 18/2020 has pointed out that the impugned orders dated 10.01.2020 of the Sub Court, Muvattupuzha, are quite illegal since the orders challenged before that court were not appealable under law.

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After hearing both sides, I am satisfied that the first appellate court wrongly interfered with orders which were not appealable under law. Under the Partition Act, 1893, only those orders for sale made by court under Sections 2, 3 or 4 are deemed to be decrees within the meaning of Section 2 of the Code of Civil Procedure,1908. The orders impugned before the first appellate court were not orders of sale coming within the scope of any of the Sections aforesaid as enumerated in Section 8 of the Partition Act. The appellants in my view have to work out the remedies before the appropriate forum prescribed by law. The learned

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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counsel for the respondents also did not dispute that the orders challenged before the first appellate court were non appealable. Since impugned orders were passed in appeals which were not maintainable under law, they are illegal and liable to be set aside. In other words, the first appellate court erred in interfering with the orders in I.A.No.1227/2019 in I.A.No.330/2019 in O.S.No.137/2016 and I.A.No.1228/2019 in I.A.No.329/2019 in O.S.No.139/2016 dated 17.07.2019.

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In the result, F.A.O.(RO)Nos.14 & 18/2020 are allowed setting aside impugned orders in A.S.No.43 & 44/2019 dated 10.01.2020. O.P.(C)Nos.1544 & 1547/2019 are dismissed. Parties would suffer their respective costs.

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All pending interlocutory applications will stand closed.

Sd/-

T.V.ANILKUMAR,JUDGE

DST

//True copy/

P.A.To Judge

O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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APPENDIX OF OP(C) 1544/2019

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 13.11.2018 IN OS NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA.

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EXHIBIT P2 TRUE COPY OF THE PRELIMINARY DECREE DATED 13.11.2018 IN O.S. NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXHIBIT P3 TRUE COPY OF I.A. NO.329/2019 IN O.S.NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA.

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EXHIBIT P4 A TRUE COPY OF THE JUDGMENT DATED 24.09.2018 IN WRIT APPEAL NO.1757/2018 OF THE HON'BLE HIGH COURT OF KERALA. EXHIBIT P5 TRUE COPY OF THE I.A. NO.679/2019 IN I.A. NO.329/2019 IN O.S. NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA. EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT. EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT OF THE TENANT OF THE BUILDING SRI GEORGE.

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EXHIBIT P8 TRUE COPY OF I.A. NO.1228 OF 2019 IN I.A. NO.329 OF 2019 IN O.S. NO.139/2016 OF THE MUNSIFF'S COURT, MUVATTUPUZHA.

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EXHIBIT P9 TRUE COPY OF THE ORDER DATED 04.04.2019 IN I.A. NO.679/2019 IN I.A. NO.329/2019 IN O.S. NO.139/2017.

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RESPONDENTS' EXHIBITS: NIL

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O.P.(C) Nos.1544 & 1547/2019, F.A.O.(R.O.)Nos.14 & 18/2020

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APPENDIX OF OP(C) 1547/2019

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PETITIONERS' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 24.10.2018 N O.S. NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA

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EXHIBIT P2 TRUE COPY OF THE PRELIMINARY DECREE DATED 24.10.2018 IN O.S. NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA.

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EXHIBIT P3 TRUE COPY OF I.A. NO. 330/2019 IN O.S. NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA. EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 24.9.2018 IN WRIT APPEAL NO. 1758/2018 OF TE HON'BLE HIGH COURT OF KERALA. EXHIBIT P5 TRUE COPY OF THE I.A. NO. 683/2019 IN O.S. NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA. EXHIBIT P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DEFENDANT.

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EXHIBIT P7 TRUE COPY OF THE AFFIDAVIT OF THE TENANT OF THE BUILDING.

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EXHIBIT P8 TRUE COPY OF IA NO. 1227 OF 2019 IN OS NO. 137/2016 OF THE MUNSIFFS COURT MUVATTUPUZHA.

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EXHIBIT P9 TRUE COPY OF THE ORDER DATED 4/4/2019 IN I.A. NO. 683/2019 IN I.A. NO. 330/2019 IN O.S. NO. 137/2016

¶124

RESPONDENTS' EXHIBITS: NIL

Eldho K. Thomas v. Naveen B. Parappattu

Case brief

What is this about?

What did the court decide?

Eldho K. Thomas v. Naveen B. Parappattu

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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