Radha Kant Singh vs Zewar Devi & Ors on 16 May, 2017

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Patna High Court

Radha Kant Singh vs Zewar Devi & Ors on 16 May, 2017

Bench: Mungeshwar Sahoo

IN THE HIGH COURT OF JUDICATURE AT PATNA

First Appeal No.253 of 1975

Against the judgment and decree dated 20.02.1975 passed by Subordinate
Judge, Muzaffarpur in Partition Suit No.105 of 1968/66 of 1973

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Most. Parmila Devi and Ors.
.... .... Plaintiffs-Appellants
Versus
Smt. Jehar Devi & Ors
.... .... Defendants-Respondents
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Appearance :
For the Appellants : Mr. Binod Kumar Singh, Advocate.
Ms. Vagisha Pragya Vacaknavi, Advocate.
For the Respondents : Mr. Yogendra Mishra, Advocate.
Mr. Uma Kant Tiwary, Advocate.

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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO

C.A.V. JUDGMENT

Date:16-05-2017

The plaintiffs have filed this first appeal against the

judgment and decree dated 20.02.1975 passed by learned Subordinate

Judge, Muzaffarpur in Partition Suit No.105 of 1968/66 of 1973

dismissing the plaintiffs-appellants' suit for partition.

2. The plaintiffs-appellants filed the aforesaid partition

suit claiming for half share in the suit property alleging that the

common ancestor of the parties was Hanshraj Singh, who had two

sons, namely, Ramlal Singh and Shiv Narayan Singh. Ramlal Singh

had a son Jairudal Singh. Plaintiff no.1, Radhakant is the son of

Jairudal Singh and plaintiff no.2 Kaushalya Devi is the mother of
Patna High Court FA No.253 of 1975 dt.16-05-2017

plaintiff no.1.

3. The other son of Hanshraj Singh i.e. Shiv Narayan

Singh had two sons, Amir Singh and Nandipat Singh. This Nandipat

Singh is defendant no.1 and his sons and grandsons are defendant

nos.2 to 9. Amir Singh's sons and grandsons are the defendant nos.10

to 18.

4. The further case of the plaintiffs is that Ramlal died

before cadastral survey in jointness. All the properties of Hanshraj

Singh were recorded in cadastral survey in the name of Shiv Narayan

Singh and Jairudal Singh and one Narsingh Singh, although Narsingh

Singh had no title or concern with the family of Hanshraj Singh. The

father of the plaintiff was physically and mentally weak so he was

taking care of the cattle. Shiv Narayan Singh, Amir Singh and

Nandipat remained as karta of the family. Many properties were

purchased out of income from produce derived from agriculture and

also income from money lending business. However, the sale deeds

were obtained in the name of different members of the family but all

the properties are joint family properties. The defendants' family

increased in numbers as a result of which there was quarrel and then

all of them separated in mess in the year 1960 but then there had been

no partition by metes and bounds.
Patna High Court FA No.253 of 1975 dt.16-05-2017

5. The further case of the plaintiffs is that taking the

mental and physical weakness of Jairudal Singh the defendants in

collusion with survey amin got lesser area of land recorded in

possession of the plaintiff's father and the defendants got recorded all

other large area of land. Partition was demanded but they refused.

Therefore, this suit for partition was filed.

6. The defendant nos.1 to 5 filed contesting written

statement jointly. The defendant nos.10, 12 and 14 filed contesting

written statement separately. The minor defendants filed written

statement through G.A.L. The defendant no.19, the intervener who is

son of Narsingh Singh also filed separate contesting written statement.

7. The stand of defendant nos.1 to 5 is that the name of

Narsingh Singh was rightly recorded in cadastral survey record of

right along with the parties to the suit with respect to the property of

Khata Nos.93, 105, 132 and 133. The allegation of mental and

physical weakness of Jairudal Singh is denied by these defendants.

According to them, there was no money lending business nor there

was any surplus income from joint family lands. The further defence

is that after survey Jairudal Singh separated from Shiv Narayan Singh

in the year 1899. The lands which were partitioned between them to

the extent of half and half are mentioned in detail in Schedule I of the
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written statement. A korra was prepared which was signed by Shiv

Narayan Singh and Jairudal Singh. The properties of Schedule II of

written statement were given in the share of Jairudal Singh and the

lands mentioned in Schedule III of the written statement were given to

Shiv Narayan Singh and since the said partition the parties are coming

in exclusive possession. They also dealt with the properties allotted to

them in their share. Shiv Narayan Singh took loan by executing

mortgage deed on 25.04.1899. In the written statement the defendants

have given the details of the land acquired by the plaintiff after

partition which are mentioned in Schedule IV of the written statement.

The defendants claimed the lands of Schedule VI(ka) of written

statement as self acquired property of defendant no.1 after partition.

Schedule VI (kha) of the written statement which are self acquired

property of wife of defendant no.1 Phool Kumari Devi out of her

kaushal money which were acquired in benami name of Surjug Singh,

the maternal uncle of defendant no.1 who executed laddavi deed in

favour of defendant nos.2 to 4.

8. The further defence is that after death of Shiv

Narayan Singh partition took place between Nandipat, defendant no.1

on one side and his brother Amir Singh on the other side in the year

1936. In this partition the self acquired land of defendant no.1 and his
Patna High Court FA No.253 of 1975 dt.16-05-2017

wife were excluded from partition. The Schedule VII of written

statement and Schedule VIII of the written statement were allotted to

him in partition respectively. The revisional survey record was

prepared according to the lands which were held exclusively by the

parties. All other allegations made by the plaintiffs have been denied

by the defendants. After the death of Narsingh Singh, his son

(defendant no.19) claimed the land of four khatas and 145 Cr.P.C.

proceeding was initiated which was decided in favour of the

defendants.

9. The defendant nos.10, 12 and 14 contested the suit by

filing contesting written statements which is similar to that of

defendant nos.1 to 5.

10. The defendant no.19 besides taking various legal

pleas mainly pleaded that he had got half share in the lands of four

khatas being khata nos.93, 105, 132 and 133. According to him, the

landed properties have been acquired jointly by the ancestor of the

parties and the ancestor of defendant no.19. Therefore, it is jointly

recorded in their names.

11. On the basis of the pleadings of the parties the

learned trial court framed the following issues:-

(i) Is the suit as framed maintainable?
Patna High Court FA No.253 of 1975 dt.16-05-2017

(ii) Have the plaintiffs got any cause of action?
(iii) Is the suit barred by the law of limitation,
estoppel, acquiescence, waiver, ouster and
adverse possession?
(iv) Is the story of previous separation and
partition, as alleged by the defendant,
correct?
(v) Whether the acquisitions made in the names
of different descendents of Sheonarain were
acquisitions made by the joint family?
(vi) Are the plaintiffs entitled to a decree for
partition? If so, in respect of which of the
properties and with respect of what share?
(vii) Whether the lands of khata nos.93, 105,132
and 133 of village Prahladpur were the joint
family property and whether Narsingh Singh
had half share in it?
(viii) Whether the defendants acquired right, title
and interest of Narsingh Singh in lands of
khata no.93, 105, 132 and 133 of Prahladpur
by virtue of oral sale?
(ix) To what other relief or reliefs are the
plaintiffs entitled?

12. From the above issues it appears that the main

issues are Issue Nos.(iv) (v) and (vi).

13. The learned trial court on the basis of evidences and

materials available on record came to the conclusion that the

plaintiffs have included the self acquired land of defendant which

have already been sold long ago and the transferees who are necessary

party have not been made party in the suit. There was no jointness

between the parties. The parties were separated since long and the

plaintiffs have failed to prove that the acquisitions in the name of
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different defendants are joint property. Therefore, the plaintiffs are not

entitled to a decree for partition. Accordingly, the suit was dismissed.

14. The learned counsel Mr. Binod Kumar Singh for the

appellants submitted that the judgment and decree passed by the court

below is unsustainable in the eye of law because the court below

recorded the finding on surmises and conjectures without considering

the fact that the defendants have not produced any reliable evidence to

show that there had been partition by metes and bounds between the

parties. Only on presumption the court below has recorded the

finding. Jairudal Singh and father of plaintiff no.1 were first cousin of

defendant no.1, therefore, there is presumption of jointness between

Jairudal and Nandipat till 1960 when the parties separated in mess but

the court below wrongly held that the presumption in this case does

not exist.

15. The learned counsel further submitted that the court

below wrongly placed onus on the plaintiffs to prove that the parties

were joint till 1960 and the acquisitions were made out of the joint

family income. The court below also wrongly placed onus on the

plaintiffs to prove that there had been no partition by metes and

bounds. According to the learned counsel, the law is that the person

who asserts that there had been previous partition has to prove the fact
Patna High Court FA No.253 of 1975 dt.16-05-2017

as the presumption is jointness of the joint Hindu family which is in

favour of the plaintiffs. The learned counsel further submitted that the

court below has wrongly come to the conclusion that there was no

sufficient nucleus out of which the acquisitions could have been

made. On the contrary, the agricultural land belonging to the parties is

admitted, therefore, the onus was on the defendants to prove that the

properties were purchased without the aid of the joint family fund or

nucleus. The family possessed of 14-15 bigha agricultural land and

subsequent acquisition by the family shows that there was sufficient

nucleus but the learned court below wrongly discarded the same.

16. The learned counsel further submitted that the

presumption that the properties acquired in the name of the joint

family members are the joint family property but the court below

failed to appreciate this position of law. The learned counsel further

submitted that when the trial court disbelieved the alleged korra

produced by the defendants in support of partition, the learned trial

court should have decreed the plaintiffs' suit for partition. The

allegation made by defendants that there had been partition in 1899

cannot be believed as during that period the plaintiff's father Jairudal

Singh was an infant. The learned court below has wrongly held that

the transferees had not been made party who are necessary party
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without noticing the fact that transfers have been made by the

plaintiff. The learned trial court had wrongly recorded the finding that

all the lands acquired through Ext.D series are self-acquired property

of defendant nos.10 to 12 in the names of their wives. On these

grounds the learned counsel submitted the impugned judgment and

decree be set aside and the first appeal be allowed and the plaintiffs-

appellants' suit for partition be decreed.

17. On the other hand, the learned counsel

Mr. Yogendra Mishra appearing on behalf of the respondents

submitted that there is no illegality or irregularity in the impugned

judgment. The learned trial court has appreciated all the materials and

important evidences and then came to the conclusion that there had

already been partition. In the present case, according to the defendants

the partition was prior to 1899, therefore, there is no direct evidence

of partition but the subsequent conduct of the parties clearly proves

previous partition. The properties have been recorded separately in the

cadastral survey record of right and also in the revisional survey

record of right. After this partition the plaintiffs also acquired separate

property and the defendants also acquired separate property. The

parties have also sold many properties and possession has already

been given to the purchasers. These dealings by the parties are not
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recent dealings but since long and moreover there are some inter-se

transactions between the parties. Therefore, the parties are separate

since long, they have got separate residence and separate mess since

long, the properties are acquired separately and also sold by them

exclusively treating those properties as their property without any

hindrances and objections since long. Therefore, taking into

consideration the cumulative effect of these conducts of the parties it

can safely be held that there had already been partition by metes and

bounds between the parties.

18. In the present case, the plaintiff, who is claiming

partition, is fourth generation from the common ancestor, therefore,

the presumption of jointness is so weak that simple denial of jointness

by the defendants is sufficient enough to non-suit the plaintiff unless

the plaintiff proves the fact that although the parties are messing

separately since long, residing separately since long, acquiring

properties separately since long, selling properties separately treating

the properties as their exclusive property since long, then also the

parties are still joint or that there had been no partition by metes and

bounds because according to Hindu Law, the presumption is stronger

in the case of the brothers than in the case of cousins and the farther

you go from the founder of the family the presumption becomes
Patna High Court FA No.253 of 1975 dt.16-05-2017

weaker and weaker. The reason is that brothers are for the most part

undivided while the second cousins are generally separated and the

third cousins are for the most part separated. According to the learned

counsel, therefore, it is not believable that the family will remain joint

upto fourth generation from the founder.

19. The learned counsel further submitted that many

sale deeds have been produced by the defendants which are in the

name of female members, who are not coparceners. The plaintiff

never sought for any declaration that the properties have been

acquired by the joint family fund in the name of females who are not

coparceners. The females have got no share in the joint family

properties then why the properties have been acquired in the name of

female members, who have got no concern with the joint family

property. No explanation has been submitted by the plaintiff. Even if

there was less area of land allotted in the share of plaintiff's ancestor

then also on that ground the partition cannot be reopened after more

than half century. The defendants never prayed for declaration that the

female members are the benamidars of the coparceners. Considering

all these aspects of the matters the learned trial court has rightly

dismissed the plaintiffs' suit, therefore, the first appeal be dismissed

with cost.
Patna High Court FA No.253 of 1975 dt.16-05-2017

20. In view of the above submissions of the parties ,the

following points arise for consideration in this first appeal:-

(a) Whether there is unity of title and possession
between the parties as claimed by the plaintiffs or
there had already been previous partition as claimed
by the defendants?
(b) Whether the purchasers who are in possession of
their purchased properties are necessary party in
this suit for partition and for non-addition of them
this partition suit is liable to be dismissed?
(c) Whether the properties acquired in the names of the
female members and in the names of defendants are
joint family properties or are self-acquired
properties of the defendants?

21. Point No.(a):

The plaintiffs-appellants have filed this simple suit for

partition making simple case that there had been no partition by metes

and bounds. It is the specific case of the plaintiffs that Ramlal Singh

died prior to cadastral survey and in the cadastral survey the names of

Jairudal Singh and Shiv Narayan Singh have been recorded. It clearly

proves that Hanshraj, the common ancestor had also died prior to

cadastral survey. This cadastral survey took place in the year 1900-

1902. According to the defendants, there had already been partition

between the parties in the year 1899. In support of their respective

cases both the parties have adduced evidences. Admittedly there is no

document to prove that there had been partition in the year 1899.

However, when there is no direct evidence, the subsequent conduct of
Patna High Court FA No.253 of 1975 dt.16-05-2017

the parties may be considered to arrive at a conclusion. The

defendants have produced several documents.

22. P.W.s.2 and 3 have admitted the fact that Nandipat

had left the ancestral house and went to Gangapur and he has acquired

lands there and has also constructed house. The defendants have also

produced Ext.A/15 to show that plaintiff's father has acquired

milkiyat interest in the year 1913 in tauzi no.10825. In Collectorate

partition he was allotted separate tauzi and the plaintiff's father was

mutated in Register D which has been marked as Ext.O. These

documents show that since 1913 Jairudal Singh was acquiring land in

his name who has also been separately mutated. This fact destroys the

case of the plaintiff that his father was mentally and physically weak.

23. Ext.B/9 has been produced by the defendants to

show that Shiv Narayan Singh obtained some land by mortgage from

Janki Kurmi in the year 1918. It appears that the same land was again

mortgaged by Ext.B/13 on 29.07.1927 in favour of the plaintiff's

father Jairudal Singh who redeemed the mortgage of Shiv Narayan

Singh by paying the mortgage money. The question is if the parties

were joint then how one brother was paying the mortgage money to

the other brother and same property is being taken by him in

mortgage. This payment of money inter-se shows that both of them
Patna High Court FA No.253 of 1975 dt.16-05-2017

were separate since then.

24. Ext.D-1/2 is a registered sale deed dated 21.06.1951

which shows that plaintiff himself has acquired land with defendant

no.10 which he sold by Ext.-D-1/1 on 23.06.1959 to the wife of Deep

Narayan Singh. Again Ext.A/10 dated 03.07.1940 shows that plaintiff

acquired some lands with Ramautar. The plaintiff as P.W.7 in his

evidence has admitted this fact. P.W.1 has been examined who has

stated that plaintiff has sold property to father of P.W.1 and he is in

possession of the same.

25. The defendants have also produced various

documents to show that Nandipat had also acquired many properties

independently long ago. Ext.A/16 is dated 19.05.1908, Ext.A/14 is

dated 10.05.1909, Ext.A/15 is dated 24.09.1913, Ext.A/12 is dated

29.11.1929

and likewise the other documents i.e. Exts.A series are from the year 1908 to 1959. These properties are in the name of Nandipat or his sons.

26. Ext.D series i.e. D-1/1 to D-1/6 are of the year 1951 to 1960 which have been acquired either by sale or bharna by defendants. Ext.A series and Ext.B series are various registered sale deeds. Ext.B/8 is of the year 1899 which shows the separate dealings of the properties by the defendants. The defendant nos.10 to 12 have Patna High Court FA No.253 of 1975 dt.16-05-2017 15 also purchased land by Ext.D-1/3 of the year 1954 from Nandipat and Ext.D-1 dated 19.01.1955 from Ramautar Singh, defendant no.2 and Ext.D-1/1 dated 23.06.1959 from the plaintiff himself and the sale deed Ext.A/5 is dated 12.05.1953 which is in the name of wife of defendant no.10. These deeds are the inter-se transactions between the parties. If there had been no partition, how these properties were transferred by one joint family member to other joint family member.

27. A Division Bench of this Court in A.I.R. 1977 Patna 59 (Ram Bahadur Nath Tiwary Vs. Kedar Nath Tiwari and others) has held that the inter-se transaction is strong circumstance to prove partition between the parties.

28. It appears that after vesting of zamindari the parties were awarded compensation separately which would be evident from Ext.T/3 and Ext.T/5. Ext.G series show that the rent receipts are also separate in the name of different persons. Ext.F series show that the lands are also separately recorded in the names of the parties. P.W.2 in his evidence at paragraph 10 has admitted the fact that there was partition among the defendant nos.1 to 18. This proves the fact that there has been partition between the defendants themselves who are the branch of Shiv Narayan Singh. Now the question is if there had been no partition between the two branch i.e. Ramlal Singh and Shiv Patna High Court FA No.253 of 1975 dt.16-05-2017 16 Narayan Singh, how the partition took place between the descendents of Shiv Narayan Singh alone. This has not been explained by the plaintiffs.

29. Over and above these facts, another important fact is that Exts.P, P/1 and Ext.Q show that in Execution Case No.162 of 1923 one Ruccha Choudhary had purchased substantial part of the suit land in auction sale and thereafter he sold the property by registered sale deed dated 07.04.1931 (Ext.I) in favour of Shiv Narayan Singh, Raj Narayan Singh and Binda Singh and thereafter there has been series of transactions with respect to the said land by Ext.K and Ext.P/1. The other witnesses examined on behalf of the plaintiffs as well as the defendants are on the question of possession of land which are not relevant.

30. In view of the above facts and materials, it becomes clear that the parties are messing separately, residing separately, acquiring properties separately, selling properties separately since more than 60 years. The properties are separately recorded in the cadastral survey record of right which took place in the year 1900 to 1902.

31. The Hon'ble Supreme Court in A.I.R. 1962 Supreme Court 287 (Bhagwan Dayal and another Vs. Mst. Reoti Patna High Court FA No.253 of 1975 dt.16-05-2017 17 Devi) has held that the general principle is that every Hindu family is presumed to be joint unless the contrary is proved, but this presumption can be rebutted by direct evidence or by course of conduct. In the case of old transactions when no contemporaneous documents are mentioned and when most of the active participants in the transaction have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time. Admittedly in this case the case of the defendants is that there had been partition prior to cadastral survey in the year 1899. No document is available nor any person who participated in the said transaction is alive. The parties are either fourth generation or fifth generation from the founder of the joint family i.e. Hanshraj Singh, who admittedly died much prior to cadastral survey.

32. A Division Bench of this Court in the case of Arjun Mahto Vs. Monda Mahatain & Ors. (A.I.R. 1971 Patna 215) relying on the decision of the Supreme Court in the case of Bhagwan Dayal (Supra) has held that the partition can be proved by the intention of the parties manifested by their subsequent conduct, by their sole and independent enjoyment of the properties. Separation in Patna High Court FA No.253 of 1975 dt.16-05-2017 18 food and residence for a long time among the brothers of a Hindu family, independent transactions of property, separate possession and enjoyment of properties are by themselves, no doubt, not conclusive but the cumulative effect of such fact may show that there had been a partition between the brothers during their lifetime. In the present case at our hand, the fact as stated above clearly fits in with this decision.

33. In A.I.R. 1991 Patna 1 (Ganesh Sahu and another Vs. Dwarika Sao and others) it has been held by this Court at paragraph 50 that there has been a disruption in the joint family. The said fact coupled with other evidence regarding separate possession both in respect of agricultural land and residence, are on record and, in this view of the matter, there cannot be any doubt that there had been a previous partition in respect of the properties in suit.

34. The above views have been repeated again in the decisions of this Court in Radhamoni Bhuiyanin and others Vs. Dibakar Bhuiya and others (A.I.R. 1991 Patna 95) and in Pata Sahu and another Vs. Hiru Sahu and others (A.I.R. 1991 Patna

276). From perusal of this decision, it appears that in that case also the High Court found that the parties were having separate mess and residence, lands were cultivated by parties separately, separate transactions were entered into regarding suit property with third party. Patna High Court FA No.253 of 1975 dt.16-05-2017 19 Considering these facts it has been held that there had been partition.

35. In A.I.R. 2013 Patna 131 (Kripa Devi & Ors. Vs. Poonam Devi & Ors.) this court again has taken the same view.

36. In the present case, there is inter-se transaction also between the parties as discussed above. Therefore, the cumulative effect of these facts coupled with the law laid down by the Supreme Court, Division Bench of this court and Single Bench of this Court, it leads to irresistible conclusion that there had already been previous partition between the parties. The submission of the learned counsel for the appellants that the court below only on the presumption has recorded the finding is not acceptable. From perusal of the judgment of the trial court, it appears that the trial court has considered all the documents which are relevant and also the oral evidences and then considering the position of law held that there had been partition. I find no reason to interfere with the finding of the court below on this point. Accordingly, I find that the defendants have been able to prove that there had already been previous partition between the parties much prior to filing of the suit. Therefore, there is no unity of title and possession between the parties. Thus finding of the trial court on this point is hereby confirmed. Accordingly, Point No.(a) is answered against the appellants and in favour of the respondents. Patna High Court FA No.253 of 1975 dt.16-05-2017 20

37. Point No.(b):

It is admitted fact that the purchasers are in possession of some of the suit properties which have been purchased by them but the said purchasers have not been made party in the partition suit. In other words, the properties of the strangers have also been included in the partition suit without making the strangers party defendants. On this point also the plaintiffs' suit for partition is liable to be dismissed i.e. for non-joinder of necessary party, the plaintiffs' suit is liable to be dismissed.

38. Point No.(c):

It is admitted fact that some of the properties are standing in the name of wives of defendants as mentioned above. However, the female members have not been made party defendants. Therefore, also the suit is bad for non-joinder of necessary party. Moreover, I have already recorded finding above that there has been previous partition between the parties before cadastral survey or after cadastral survey as claimed by the defendants, therefore, there is no question of joint family fund arises. The parties were cultivating lands separately and acquiring lands separately out of their own income, as stated above. Even they were transferring the property to each other. In such circumstances, when there had already been partition, in no Patna High Court FA No.253 of 1975 dt.16-05-2017 21 case it can be said that the defendants acquired the properties out of the joint family fund as such are joint family properties. I have seen above that huge properties have been acquired by the defendants through many documents. It is not a case of one transaction or two transactions. There had been no objection at all. The acquisition ranges from the year 1908 to 1960. I, therefore, find that all the properties which are standing in the name of defendants or their family members are not the joint family property rather those properties are the self-acquired properties of the defendants. The plaintiffs failed to prove that those properties are the joint family property. Thus, the finding of the trial court on this point is hereby confirmed. This point is answered against the appellants and in favour of the defendants-respondents.

39. In the result, I find no merit in this first appeal and, accordingly, this first appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost.

(Mungeshwar Sahoo, J) Harish/-

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