Patna High Court
Rajbansh Dubey Alias Jagdish Dubey & Ors vs The State Of Bihar & Ors on 7 August, 2017
Author: Anil Kumar Upadhyay
Bench: Chief Justice, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.216 of 2016
IN
Civil Writ Jurisdiction Case No. 9511 of 1995
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1. Rajbansh Dubey Alias Jagdish Dubey son of lae Kawal Dubey
2. Rama Shankar Dubey, son of late Kawal Dubey
3. Ram Bali Dubey, son of late Kawal Dubey (Contesting Respondents 1st set)
4. Sri Kishun Dubey @ Sri Krishna Dubey, son of Satram Dubey
5. Ajay Kumar Dubey, son of Late Ram Awadh Dubey
6. Mostt. Asha Kuer (wrongly mentioned as Most. Tara Devi in the writ application)
wife of Late Rajendra Dubey
7. Pramod Dubey son of late Rajendra Dubey
8. Gajendra Dubey alias Acchabar Nath Dubey, son of late Ram Jag Dubey
Respondent 2nd Set), All resident of Village Dubauli, P.O. Mion, Police Station
Bhagawanpur, District- Kaimur (Bhabhua)
.... .... Appellant/s
Versus
1. The State of Bihar
2. The Deputy Director, Consolidation (Head Quarter) Bihar, Patna
3. The Deputy Director of Consolidation, Rohtas at Sasaram
4. The Consolidation Officer, Bhagwanpur (Kaimur)
5. Ram Bharat Dubey, son of late Satram Dubey, resident of village Dubauli, Post
Office- Mion, Police Station Bhagwanpur, District- Kaimur (Bhabhua) (Petitioner)
6. Baliram Dubey, son of Satram Dubey, resident of village Dubauli, P.O. Mion, Police
Station - Bhagwanpur, District-Kaimur (Bhabhua)
.... .... Respondents.
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Appearance :
For the Appellant/s : Mr. Kamal Nayan Choubey, Sr. Advocate
For the State : Mr. Anwar Karim, GP-10
For Resp. No. 5 : Mr.Shashi Shekhar Dwivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate
Mr. Parth Gurav, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY)
Date: 11-08-2017
In this intra-Court Appeal the appellants have assailed
the judgment and order dated 16.7.2015 passed by the Writ Court in
CWJC No. 9511 of 1995.
The brief facts for adjudication of the present Letters
Patent Appeal are set out herein below:
Patna High Court LPA No.216 of 2016 dt. 11-08-2017
2/18
CWJC No. 9511 of 1995 was filed by the respondent No.
5 against the decision of the Deputy Director, Consolidation
(Headquarters), Bihar, Patna dated 30th September, 1995 in Revision
Case No. 645 of 1989 and the order dated 19.9.1988 passed by the
Deputy Director of Consolidation, Rohtas at Sasaram in Appeal No.
77 of 1985-86.
From the pleadings of the parties, it appears that during
the pendency of the consolidation proceedings in the village in
question three petitions were filed, two by one Ram Bharat Dubey,
respondent no. 5 in the instant appeal, being Case Nos. 54/1984-85
and 55/1985-85 and one by Bhagwan Dubey against Jagdish Dubey
and others, being case No. 70 of 1985-85. In case No. 54/1985-86,
Ram Bharat Dubey, respondent No. 5 herein claimed that he has
acquired right, title and interest pursuant to gift deed No. 2039 dated
4.5.1977and as such the extent of property acquired by Ram Bharat Dubey under the gift deed should be carved out in his name and he should be allotted Chak. Case No. 55 of 1984-85 was filed by said Ram Bharat Dubey for allotment of Takhta according to the schedule prepared on the basis of partition of the property between the parties. The third case, namely, case No. 70/1984-85 was filed by Bhagwan Dubey claiming acquisition of certain properties in his personal capacity and as such the land acquired through sale deed no. 1084 of plot No. 156 should be carved out as his self acquired property and the land acquired vide sale deed no. 1084 should be allotted either in Patna High Court LPA No.216 of 2016 dt. 11-08-2017 3/18 the name of the applicant Bhagwan Dubey or the purchaser, Bhagwan Dubey and Rajendra Dubey. All the three cases were initially heard by the Assistant Consolidation Officer who referred the same to the Consolidation Officer, Bhagwanpur for final decision in purported exercise of jurisdiction under Section 10(4) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinasfter referred to as 'the Act'). The Consolidation Officer after hearing the parties accepted the claim of Ram Bharat Dubey and decided that the record may be corrected in the light of the gift deed no. 2039 dated 4.5.1977. The Consolidation Officer noted that the gift was a registered gift and on the basis of the said gift deed the mutation was made in favour of the claimant. He noted that even at the time of mutation pursuant to the gift deed no one had raised any objection. The Consolidation Officer also noted that the donor has obtained permission through Permission Case No. 359 of 1974 and also recorded the finding that there was oral partition between the heirs of Guput Dubey in the year 1966 and as such the donor Bhagwan Dubey was competent to execute the deed of gift to the extent of his share. The Consolidation Officer also accepted the case of the respondent No. 5, Ram Bharat Dubey about the partition for the purpose of allocating the land as per the schedule enclosed with the Case No. 55 of 1984-85. The Consolidation Officer after considering the entire aspect of the matter and the documents produced by the parties in support of their respective claims and the objection of the opposite Patna High Court LPA No.216 of 2016 dt. 11-08-2017 4/18 parties held out that the claimant has been able to establish that the land in question was acquired as their self acquired property. The Consolidation Officer finally on 27.3.1985 passed the following orders.
vr% mijksDr nk[khy dkxtkrksa] nksuksa i{kksa ds fo}ku vf/koDrkvksa dks lquus ds Ik'pkr eSa bl fu"d"kZ ij igwWprk gw¡ fd oknh dk nkok lR; izfrr gksrk gS rFkk izfroknh x.k vius nkok dks lkfor djusa esa vlQy jgsa gSAa oknh dk vkosnu i= Lohd`r fd;k tkrk gS rFkk izfroknh ds }kjk nk[khy vkifÙk i= [kkjht djrs gq, fuEu vkns'k ikfjr fd;k tkrk gSa A Okkn la0- 54@84 I. [kkrk la[;k & 23 ls Hkxoku nwos dk uke [kkjht dj vc muds txg jke Hkjr nwos ] firk lrjke nwos dk uke vafdr djsaA II. okn la0- 70 @84 [kkrk la0 4 ls [ksljk la0 156 jdok 8 Mh0- ij Hkxoku nwos o0 lrjke nwos firk xqiwr nwos o0 Jh jktsUnz nwos firk jke tx nwos lk0 nqokSyh dk uke ntZ dj vyx [kkrk [kksysaA III. [kkrk la0 23 [ksljk la 209 jdok 20 Mh0 dk [kkrk jke falgklu nwos firk psFkj nwos la0 nwokSyh ds uke cukdj [ksljk u0- 209 jdok 20 Mh0 [kkrk u0- 23 ls [kkjht djsaA rFkk vkoafVr pd 39@11 esa ls jdok dh iwfrZ djsaA IV & okn la[;k 55@85 bl lEcU/k esa pdoanh dk voyksdu fd;kA [kkrk u0- 23 esa 6 pd vkoafa Vr fd;s x;s gSA mi funs'kd pdoanh ds }kjk Hkh bl [kkrs dh Hkwfe ij vkns'k ikfjr gks pqdk gSA vxj pdksa dk oWVokjk vkns'k fn;k tkrk gS rks izfr pd esa 1@4 ds vuqlkj 6 x 4 = 24 pd dk vkoaVu gks Patna High Court LPA No.216 of 2016 dt. 11-08-2017 5/18 tkrk gSA ftlls pdksa dk fo[k.Mu eku gh ugh cfYd foYdqy NksVs & NksVs VqdMs+ Hkh gks tkrsa gSaA ,slh ifjfLFkfr esa pdksa ds lek;kstu vkns'k nsuk ;qfDriw.kZ ugh gksxkA vr% losZ [ksljk ds }kjk nk[khy vuqlwfp ds vuqlkj Qjhd u0 1 jkeHkjr nwos firk Jh lrjke nwos lk0 nqokSyh dh fuEu Hkwfe izkIr le>kk tk;sxkA [kkrk 23 [ksljk ,dok 216 047 211 041 242 016 251 025 4 45 444 59 480 82 467 05 199 36 422 25 476 77 222 05 4 = 65 Qjhd u0- 2 %& Jh lrjke nwos firk Jh xqiwr nwos lk0 nqokSyhA [kkrk [ksljk Jdok 23 160 1 = 43 484 38 Patna High Court LPA No.216 of 2016 dt. 11-08-2017 6/18 189 021 166 023 10 083 7 1 = 34 12 059 222 05 5 = 06 Qjhd la- 3 jktsUnz nwos oks xtsUnz nwos mQZ vloj nwos firk th jketx nwos lk-0 nqokSyh [kkrk [ksljk Jdok 23 172 1 = 53 176 062 182 66 15 020 2 026 12 28 218 014 222 05 24 371 025 4 = 18 Qjhd la & 4 Jh doy nwos ] firk Jh xqiqr nwos la0 nqokSyhA [kkrk [ksljk jdok 23 63 1 = 51 Patna High Court LPA No.216 of 2016 dt. 11-08-2017 7/18 410 098 40 041 464@490 038 51 1 = 22 24 372 08 363 08 4 = 66 V. [ksljk la0 & 310 jdok 3 Mh0 edku ,oa [kasljk la- 309 jdok 6 Mh0 oks 311 jdok 2 rFkk 313 jdok 4 dqy 15 Mh0 Hkwfe edku gSA ftldk foHkktu {ks=kf/kdkj ls ckgj gSA vr% bls la;qDr [kkrk nkjksa ds uke ij gh jgsxkA vr% vkns'k foUnw la0 1 ] 2 ] ,o 3 dk vuqikyu gksxkA rFkk foUnw 4 foHkktu ekurs gq, pdksa esa ifjorZu ugh gksxkA rFkk foUnw 5 dk Hkh vkns'kkuqlkj vuqikyu fd;k tk;A rnuqlkj vkns'k dk ikyu djrsa gq, vfHkyss[kksa esa dkjokbZ djsaA gLrk{kj - vLi"V 27@3@81 pd0ink0 All the three cases involving three different kinds of disputes based on different documents and different mode of acquisition of right, title and interest for allocation of their respective Chaks was decided by the Consolidation Officer as discussed hereinabove, however, the opposite parties appellants herein aggrieved by the decision of the Consolidation Officer dated 27.3.1985 filed one composite appeal instead of preferring three Patna High Court LPA No.216 of 2016 dt. 11-08-2017 8/18 appeals and the appellate authority in purported exercise of power under Section 10(6) of the Act held out that the family was joint and as such, the deed of gift executed by Bhagwan Dubey was void. The Deputy Director of Consolidation though noted that the sale deed dated 11.2.1975 was jointly executed by Bhagwan Dubey, Satram Dubey and sons of Sanjay Dubey in favour of stranger yet he has reached to the conclusions that the family was joint, notwithstanding in the genealogical table noted by the Deputy Director of Consolidation Guput Dubey had four sons, namely, Bhagwan Dubey, Satram Dubey, Ramjag Dubey and Shri Kawal Dubey and if the entire family was joint there was no occasion for executing sale deed only by Bhagwan, Satram and not by Ramjug or his descendent or Shri Kawal or his descendent. The question of partition and subsequent reunion is not alien to the Hindu Law. The aforesaid document dated 11.2.1975 cannot be taken as conclusive proof of jointness of the family since oral partition is permissible under the Hindu Law and if the oral partition of 1966 was acted upon which one can discern from the conduct of the parties and as such the finding recorded by the appellate authority, namely, Deputy Director of Consolidation for setting aside the decision of the Consolidation cannot be accepted as free from any blemish.
Against the decision of the Deputy Director, Consolidation in Appeal No. 77 of 1985-86, Revision Case No. 645 of 1989 was filed. Section 35 of the Act confers jurisdiction to the Patna High Court LPA No.216 of 2016 dt. 11-08-2017 9/18 Director of Consolidation the power to be exercised on his own motion or on the application made by any of the parties or on reference being made by any subordinate authority. The Director of Consolidation is required to call for the records and examine the records and thereafter, decided the dispute and pass appropriate order after opportunity of being heard to the parties. Director is defined in Section 2(4) the Director of Consolidation means 'the Officer appointed as such by the State Government to exercise the powers and perform the duties of Director of Consolidation under this Act or the rules made thereunder and shall include an Additional Director of Consolidation and a Joint Director of Consolidation'. The definition of the Director does not include the Deputy Director of Consolidation. Unfortunately, the Consolidation Revision No. 645 of 1989 was not decided by the Director of Consolidation or Additional Director of Consolidation or the Joint Director of Consolidation which is defined under the Act as the Director of Consolidation but by the Deputy Director (Hqrs.) In the instant case the appeal was decided by the Deputy Director of Consolidation, Rohtas at Sasaram and against the decision of the Deputy Director, revisional power was exercised by the Deputy Director (Hqrs.) which is patently without Jurisdiction. Be that as it may the Deputy Director (HQ) was lacking jurisdiction under the Act concurred with the finding of the Deputy Director, Rohtas (Sasaram) as such and same illegality was perpetuated.
The respondent No. 5 aggrieved by the decision of the Patna High Court LPA No.216 of 2016 dt. 11-08-2017 10/18 Director of Consolidation (Hqrs.) dated 30.9.1995 affirming the order of the Director, Consolidation, Rohtas at Sasaram in Appeal Case No. 77 of 1985-86, filed CWJC No. 9511 of 1995. The writ petitioner has assailed the decision of the Deputy Director, Consolidation in Appeal No. 77/1985-86 which was affirmed in Revision Case No. 645 of 1989 dated 30.9.1995.
Manifold issues were raised in the writ petition, one of the issues was that against three cases decided by the Consolidation officer being Case Nos. 54, 55 and 70 of 1984-85 involving different grounds or principles on the strength of different materials and grounds one appeal was filed which is not permissible and relying upon the judgment of the Apex Court in the case of Sheodan Singh Vs. Daryao Kunwar: AIR 1966 SC 1332 submitted that filing of one appeal against the decision in three cases is impermissible and it should be treated as barred by res judicata on the principles laid down by the Apex Court in the judgment reported in AIR 1966 SC 1332 and the writ petitioners have also submitted before the Writ Court as it appears from the pleadings that there was partition in the family and the memorandum of partition was signed by all the four brothers. Referring to registered sale deed it was also pleaded that after the deed of gift dated 4.5.1977 respective parties have also executed registered sale deed in their personal capacity which is indicative of the fact that there was partition in the family and as such the family after partition executed different sale deeds.
Patna High Court LPA No.216 of 2016 dt. 11-08-2017 11/18 The writ petitioners also pleaded that after the execution of the gift deed after permission of the concerned authorities, name of the petitioner was mutated in the Anchal record and rent receipts were also issued but none of the parties have raised any objection at the time of mutation or preferred any appeal by way of revision against the order of the mutation.
The main contention of the writ petitioners was that the three cases were decided by the Consolidation Officer on 27.3.1985 and several members of the family were parties in the proceedings but only Kabal Dubey, father of respondent Nos. 4 to 6 have filed the appeal. The order passed in Chakbandi Case No. 55/1984-85 is still existing and as such the same operate as res judicata as no appeal was preferred against the said decision. The Writ Court on consideration of the pleadings of the parties held out that oral partition of ancestral property is permissible and valid partition and no document is required. The Writ Court primarily decided the writ petition on the fundamental issues raised by the Senior Advocate of the petitioners that there were three separate cases registered, two by the petitioner and one by Bhagwan Dubey. Bhagwan Dubey died on 15.8.1985 and his interest devolved on the petitioner in entirety. All the three applications were allowed vide order dated 27.3.1985. when the contesting respondents if at all were aggrieved by all the three orders then three separate appeals ought to have been filed because effectively there were three separate orders allowing the three separate Patna High Court LPA No.216 of 2016 dt. 11-08-2017 12/18 petitions having dependent to common set of facts they were decided by common order. The fact is that the respondents have filed only one appeal. The Writ Court accepted the submission of the writ petitioners that the appellate order and the revisional order cannot be sustained in view of the fact that two applications have attained finality as only one appeal is preferred. The reliance into the judgment of Sheodan Singh Vs. Daryao Kunwar, reported in AIR 1966 SC 1332 and holding that when one appeal was filed, which has to be restricted to anyone of the cases, these findings being common, would bind the parties in respect to the other two dispute. If that be so, then it would operate as res judicata between the parties as the issue being the same, the party being the same and therefore only a singular appeal has been filed, these findings which have attained finality, cannot be challenged. If these findings cannot be challenged, then there is nothing to be challenged in the appeal. The Writ Court set aside the order of the appellate as well as revisional court and restored the order passed by the Consolidation Officer dated 27.3.1985.
Aggrieved by the order of the Writ Court appellants have filed the present Letters Patent Appeal.
Mr. Kamal Nayan Choube, learned senior counsel appearing on behalf of the appellants has assailed the decision of the Writ Court on the following grounds:
(1) In view of the Full Bench judgment in the case of Panna Devi Vs. The State of Bihar & Ors., reported in 2010(2) Patna High Court LPA No.216 of 2016 dt. 11-08-2017 13/18 PLJR 1066, the gift deed executed without the permission of the Consolidation Officer during the pendency of Consolidation Proceeding is void.
(2) He next submitted that in the absence of partition in the family the deed of gift executed by one of the coparcener is impermissible being void and placed reliance on the judgment of the Apex Court in the case of Thamma Venkata Subbamma (dead) by L.R. Vs. Thamma Rattamma and others: AIR 1987 SC 1775.
(3) Mr Choube has assailed the judgment of the Writ Court stating that the present case is not barred by principle of res judicata. He submitted that placing reliance on the judgment of the Apex Court in the case reported in AIR 1966 SC 1332 is misconceived and misplaced. He referred to the judgment of the Apex Court reported in AIR 1953 SC 419 to substantiate that when there is one trial, one finding and one decision in all the three petitions, there cannot be two appeals. The principle discussed by the Apex Court in the case of Narhari & Ors. Vs. Shankar & Ors.: AIR 1953 SC 419 is distinguishable on fact. Firstly, in the aforesaid case there was one suit and against the judgment and decree in the suit two appeals were filed. The Apex Court noting the peculiar facts and circumstances of that case laid down the principle. AIR 1953 SC 419 contains distinguishable facts and features for ready reference paras 4 and 5 are quoted herein after:
4. In the judgment of the High Court, though Patna High Court LPA No.216 of 2016 dt. 11-08-2017 14/18 reference is given to some of these decisions, it is merely mentioned that the appellant relies on these decisions. The learned Judges perhaps thought that in the presence of the Hyderabad Judicial Committee decision in Jethmal v. Ranglal 17 D.LR..322 (A), they need not comment on these decisions at all. There is also a later decision of the Judicial Committee of the State in Bansilal v.
Mohanlal 33, Deccan LR 603 (F-G), where the well known and exhaustive authority of the Lahore High Court in Mst. Lachmi v. Mst. Bhuli AIR 1927 Lah. 289 (H), was followed. In the Lahore case, there were two cross suits about the same subject-matter, filed simultaneously between the same parties, whereas in the present case, there was only one suit and one judgment was given by the trial court and even in the first appeal to the Sadar Adalat, there was only one judgment, in spite of there being two appeals by the two sets of defendants.
The plaintiffs in their appeal to the High Court have impleaded all the defendants as respondents and their prayer covers both the appeals and they have paid consolidated court-fee for the whole suit. It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.
As has been observed by Tek Chand J. in his learned judgment in AIR 1927 Lah. 289 (H) mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it Patna High Court LPA No.216 of 2016 dt. 11-08-2017 15/18 later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one. Besides, the High Court was wrong in not giving to the appellants the benefit of section 5 of the Limitation Act because there was conflict of decisions regarding this question not only in the High Court of the State but also among the different High Courts in India.
5. The learned counsel for the appellants cited in support of his arguments the decision given in Appa v. Kachai Bayyan Kutti, AIR 1932 Mad. 689 (I), which is on all fours with the present case." Thus the fact situation of AIR 1953 SC 419 is not available in the present case. Moreover, the judgment reported in AIR 1953 SC 419 is by three Judges, so far as judgment in the case of Patna High Court LPA No.216 of 2016 dt. 11-08-2017 16/18 Sheodan Singh Vs. Daryao Kunwar: AIR 1966 SC 1332 is concerned, it was rendered by four judges.
Though the writ court has not discussed in detail on the issue of partition but view of the discussion of the Consolidation Officer and the pleadings of the writ application any prudent can arrive at a conclusion that there was oral partition between the parties and the memorandum of partition was prepared and thereafter the respective parties have acted upon the partition and even alienated land out of their respective shares by way of executing the sale deed or other instrument. The extent of transfer of the respective parties also goes to show that there was partition in the joint family and as such, the coparcener, namely, Bhagwan Dubey was competent to execute deed of gift to the extent of his share. The dead of gift was registered deed of gift and from the recital it appears that the same was registered considering the permission granted by the Consolidation authority in permission case No. 359/1974.
If there was partition then there is no question of any limitation in executing the deed of gift in favour of the writ petitioner and the judgment of the Apex Court reported in AIR 1987 SC 1775 is thus not attracted in the instant case.
The Full Bench judgment is also not applicable in the present case as the deed of gift executed by one of the members of the joint family after oral partition by way of registered deed of gift which was acted upon and even mutation was done on the basis of the said Patna High Court LPA No.216 of 2016 dt. 11-08-2017 17/18 deed of gift without any demur of the opposite parties. The registered deed of gift as well as the finding of the consolidation Officer about the grant of permission to the party executing the deed of gift cannot be brushed aside in view of the legal presumption as to regularity of official acts. The finding of the appellate Court and the submission of the counsel for the appellant that no document was placed on record to establish that prior permission was obtained from the Consolidation Officer before executing the deed of gift is difficult to accept since the deed of gift was registered document and the official transaction are presumed to be regular and unless contrary is proved, the recital of the deed of gift is clinching on the point that there was permission and not only the deed of gift was registered but it was acted upon in all respect by all Revenue authorities by mutating the name of the donee and granted rent receipt in lieu thereof.
In the totality of the fact situation, we are of the considered view that the Writ Court has committed no illegality in allowing the writ application as one appeal against the decision of three cases is unsustainable and in view of the law laid down by the Apex Court in the case Sheodan Singh Vs. Daryao Kunwar: AIR 1966 SC 1332. The decision of the Consolidation Officer in two cases has remained unchallenged in the Consolidation appeal. In addition thereto decision of the Deputy Director, Consolidation in Consolidation Revision is also without jurisdiction as the Deputy Director, Consolidation, Headquarters cannot act as an appellate Patna High Court LPA No.216 of 2016 dt. 11-08-2017 18/18 authority against the decision of the Deputy Director of Consolidation, Rohtas at Sasaram particularly in view of the fact that the Deputy Director does not come within the definition of Director of Consolidation under Section 2(4) of the Act and also in view of the judgment in the case of Ram Pratap Singh & Ors. Vs. The State of Bihar & Ors. reported in 2007 (1) PLJR 57.
For the reasons stated above, I find no substance in the instant appeal.
The appeal is, accordingly, dismissed.
(Anil Kumar Upadhyay, J) Rajendra Menon - I agree.
(Rajendra Menon, CJ) S.Pandey/-
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