Himachal Pradesh High Court
Govind Ram (Deceased) Through Lrs vs Beli Ram And Others on 25 April, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RSA No. 4339 of 2013
Reserved on: April 24, 2017
Decided on: April 25, 2017
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Govind Ram (Deceased) through LRs .........Appellant
.
Versus
Beli Ram and others ....Respondents
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Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge
Whether approved for reporting?1 Yes.
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For the appellant Mr. N.K. Thakur, Senior Advocate with Ms.
Jamuna, Advocate.
For the respondents: Mr. G.R. Palsra, Advocate, for respondents
r No.1 to 3.
Nemo for respondent No.4.
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Sandeep Sharma, Judge:
Instant Regular Second Appeal under Section 100 of the Civil Procedure Code has been filed against judgment and decree dated 29.8.2013 passed by the learned Additional District Judge-II, Mandi, HP in Civil Appeal No. 05/2013, affirming the judgment and decree dated 21.11.2012, passed by the learned Civil Judge (Senior Division), Court No.1, in Civil Suit No. 46/01/2011, whereby suit for partition having been filed by the respondents-plaintiffs ('plaintiffs', hereafter), came to be decreed.
2. Briefly stated the facts of the case as emerge from the record are that plaintiffs filed a suit for partition under Section 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. ::: Downloaded on - 27/04/2017 23:59:27 :::HCHP 2 4 of the Indian Partition Act ('Act' for short), averring therein that the land bearing Khewat No. 70/68, Khatauni No. 78/76, Khasra No. 1165/887 and 1167/902, Kitas 2 measuring 0-9- 18 Bigha situate in Mauja Sidhyani, Muhal Sadhera, Hadbast .
No. 134, Tehsil Sadar, District Mandi, HP ('suit property, hereafter), as recorded in joint ownership of the parties. Plaintiffs further averred that the suit land is jointly in ownership and possession of the parties. Suit property consists of two storied residential house having five rooms alongwith two verandas and some portion of the land is vacant, surrounding the residential house. Plaintiffs further claimed that whole of the suit land is joint and unpartitioned and they want to develop their shares according to their choice. Plaintiff further alleged that the defendant-appellants ('defendant', hereafter) is trying to grab whole share of the plaintiffs and as such they filed suit for partition. In the aforesaid background, plaintiffs sought decree of partition of suit property in their favour.
3. Defendant refuted foresaid claim of the plaintiffs by raising preliminary objections qua maintainability, estoppel, cause of action, locus standi and suit being not properly valued. On merits, defendant nowhere disputed revenue record adduced on record by the plaintiffs, however, he claimed that suit land is not jointly owned and possessed by the parties. Defendant specifically stated in the written statement that ::: Downloaded on - 27/04/2017 23:59:27 :::HCHP 3 existing residential house was constructed by him by spending huge amount and plaintiffs never spent any money for the construction of residential house. Perusal of written statement suggests that the defendant admitted that there was an .
ancestral house over the suit property, which was demolished after it was gutted in fire. Defendant further stated that the plaintiff No.1-Beli Ram, was allowed to live in the lower story of the house till he constructs his own house. With the aforesaid submissions, the defendant claimed that the plaintiff No.1 has no right, title or interest over the suit property. As far as right of plaintiffs No.2, 3 and defendant No. 2, are concerned, defendant claimed that since they have been married and residing in their matrimonial houses, they have no interest in the property. Defendant, while admitting description of the land as given in para-1 of the plaint, stated that same is not in the joint ownership and possession as it has been partitioned by family partition/settlement/arrangement. In the aforesaid background, defendant prayed that suit for partition having been filed by the plaintiffs may be dismissed.
4. Learned trial Court, on the basis of pleadings of the parties, framed following issues:
"1. Whether the plaintiffs are entitled to the preliminary decree of partition of the suit land as prayed for? OPP
2. Whether the suit is not maintainable in the present form, as alleged? OPD
3. Whether the plaintiffs have no enforceable cause of action to file the present suit, as alleged? OPD ::: Downloaded on - 27/04/2017 23:59:27 :::HCHP 4
4. Whether the plaintiffs are estopped by their own act and conduct to file the present suit, as alleged? OPD
5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, as alleged? OPD
6. Whether the plaintiffs have no locus standi to .
file the present suit, as alleged? OPD
7. Relief.
5. Subsequently, learned trial Court, vide judgment and decree dated 21.11.2012, decreed the suit of the plaintiff and held the plaintiffs entitled to preliminary decree of partition. Learned trial Court also held the plaintiffs and defendant entitled to 1/5th share each in the suit property.
6. Defendant, feeling aggrieved by the aforesaid judgment and decree, preferred an appeal under Section 96 CPC before the Additional District Judge-II, Mandi, which came to be registered as Civil Appeal No. 05/2013. However, the fact remains that the aforesaid appeal was dismissed by the first appellate Court vide judgment and decree dated 29.8.2013. Hence, this Regular Second Appeal.
7. The Regular Second Appeal was admitted by this Court on 26.4.2014, on the following substantial question of law:
"Whether the findings of the learned trial Court as well as first Appellate Court are result of complete misreading and misinterpretation of the evidence and material on record and against the settled position of law?
8. Mr. N.K. Thakur, learned Senior Advocate duly assisted by Ms. Jamuna, Advocate, vehemently argued that that the impugned judgments and decrees passed by learned Courts ::: Downloaded on - 27/04/2017 23:59:27 :::HCHP 5 below are not sustainable in the eye of law as the same are not based upon correct appreciation of evidence adduced on record by the respective parties and as such deserve to be set aside. Mr. Thakur while inviting attention of this Court to the .
impugned judgments and decrees passed by learned Courts below argued that the learned Courts below have gravely erred in passing the impugned judgments and decrees, especially in the absence of any site plan, specifically giving therein description, if any, of the suit property sought to be partitioned by the plaintiffs. Mr. Thakur contended that no decree, if any, could be passed by the learned Courts below in the absence of specific details/ identification of property as such judgment, which is unexecutable, deserves to be set aside. Mr. Thakur, while inviting attention of this Court to the pleadings as well as evidence on record adduced by the defendant, stated that it is duly established on record that house over land is sole property of the defendant No.1 and plaintiff has no right, whatsoever in the house. Mr. Thakur, further contended that the civil court had no jurisdiction in partitioning the land, which is assessed to land revenue and same could only be partitioned by revenue court. Mr. Thakur, further contended that bare perusal of Ext. PW-1/B suggests that there are other co-owners in the land in dispute but they were not made party and no decree as such could be passed by the court below, without impleading them as party, because no effective decree ::: Downloaded on - 27/04/2017 23:59:27 :::HCHP 6 of partition could be passed in their absence. Mr. Thakur, further contended that in view of established position as stands reflected in the revenue record, impugned judgments and decrees are unexecutable. Moreover, no evidence worth .
the name has been led by the plaintiffs to prove that house is joint between the parties, whereas, defendant has proved beyond reasonable doubt that house was constructed by him alone and he is sole proprietor of the same. In the aforesaid background, Mr. Thakur contended that suit having been filed by the plaintiffs for partition deserves to be dismissed, after setting aside the impugned judgments and decrees passed by the learned Courts below.
9. Mr. G.R. Palsra, learned counsel representing respondents No.1 to 3-plaintiffs ('plaintiffs', hereafter), supported the impugned judgments and decrees passed by the learned Courts below. Mr. Palsra while refuting the contentions having been made by the learned counsel representing the defendant No.1, vehemently argued that there is no illegality or infirmity in the impugned judgments and decrees passed by the learned Courts below, as such same are required to be upheld by this Hon'ble Court. While inviting attention of this Court to the impugned judgments and decrees passed by the learned Courts below, Mr. Palsra contended that both the Courts have dealt with each and every aspect of evidence in its right perspective and by no stretch of ::: Downloaded on - 27/04/2017 23:59:27 :::HCHP 7 imagination, it can be said that the Courts below misappreciated or misconstrued the evidence, be it ocular or documentary, led on record by the respective parties. With a view to substantiate his aforesaid arguments, he invited .
attention of this Court to the evidence led on record by the respective parties to demonstrate that the plaintiffs successfully proved on record that suit land is jointly owned and possessed by the plaintiffs as well as defendant No.1 to the extent of 1/5th share each and as such there is no illegality committed by the learned Courts below, while decreeing the suit for partition. While specifically inviting attention of this Court to the Ext. PW-1/B, Mr. Palsra contended that the revenue record place on record alongwith plaint, prove beyond doubt that suit land is jointly owned and possessed by the parties and defendant No.1 is not the sole proprietor of same as claimed by him. Mr. Palsra further contended that the defendant No.1 has nowhere proved on record by leading cogent and convincing evidence that he is sole proprietor of the suit land. While concluding his arguments, Mr. Palsra contended that keeping in view the reasoning assigned by the learned Courts below, after appreciating evidence on record, there is no occasion for this Court to interfere, especially in view of the concurrent findings of facts and law recorded by the learned Courts below. In this regard, he placed reliance upon the judgment passed by the Hon'ble Supreme Court of ::: Downloaded on - 27/04/2017 23:59:27 :::HCHP 8 India in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264.
10. I have heard the learned counsel representing the parties and also gone through the record carefully.
.
11. With a view to explore answer to the substantial question of law as well as submissions having been made by the learned counsel representing the parties, this Court carefully examined the pleadings as well as evidence adduced on record by the respective parties, which admittedly does not suggest that learned Courts below have misconstrued the evidence available on record, rather r misappreciated careful perusal of the pleadings as well as evidence on record or a suggests that the learned Courts below have dealt with each and every aspect of the matter meticulously and there is no misappreciation of evidence as alleged by the learned counsel representing the defendant No.1. Perusal of para-1 of the plaint clearly suggests that plaintiffs while seeking partition under Section 4 of the Act, have given specific details of suit property. Plaintiffs have categorically stated in plaint that land is in joint ownership and possession of the parties and in this regard, he placed reliance upon Jamabandi for the year 2006- 07, Ext. PW-1/B, perusal whereof suggests that parties i.e. plaintiffs and defendants are in joint ownership and possession of the suit property measuring 00-09-18. Similarly, perusal of para-2 of the plaint further suggests that the ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 9 plaintiffs have given specific details with regard to residential house existing over the suit land as described herein above. Plaintiffs have specifically stated that two story residential house consisting of five rooms and two verandas is existing on .
suit land and vacant space is also surrounding the residential house. Plaintiffs have further stated that whole of the suit land is joint and unpartitioned one and has not been divided by metes and bounds. In view of the specific pleadings made by the plaintiffs in the plaint, this Court sees no force in the argument having been made by the learned counsel for defendant Nno.1 that since there was no specific detail with regard to property, no decree of partition could be passed by the courts below. Perusal of the averments as contained in the plaint as referred herein above, clearly suggests that prayer for partition made by the plaintiffs by way of suit as referred above, is not with regard to house existing over suit land, rather plaintiffs have specifically claimed themselves to be in joint ownership and possession of the land as well as house. Moreover, plaintiffs, by way of suit, sought preliminary decree of partition qua suit land, comprising of Khewat No. 70/68, Khatauni No. 78/76, Khasra Nos. 1165/887 and 1167/902, Kita 2, measuring 0-9-18 Bigha situate in Mauja Sidhyani, Mohal Sadhera, Hadbast No. 134, Tehsil Sadar, District Mandi, HP. Hence, arguments of the learned counsel representing the defendant No.1 can not be accepted that no ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 10 decree, if any, could be passed by the learned Courts below, in the absence of site plan giving therein identification and description of the house, which is sought to be partitioned. Since entire suit land, as referred to herein above, is/was .
sought to be partitioned, there is/was no requirement, as such, for the plaintiffs to give site plan as alleged by the learned counsel representing defendant No.1. Perusal of Jamabandi, Ext. PW-1/B, placed on record by the plaintiffs, clearly proves on record that property is jointly recorded in the ownership and possession of the parties. Similarly, Ext. PW- 1/B further suggests that the plaintiffs and defendants are joint owners in possession with respect to suit land, which consists of Gair Mumkin Makaan (Rihayashi) measuring 00-03- 10 Bigha and Jaye Safed measuring 00-06-08 Bigha. If the description as given in the aforesaid document i.e. Ext. PW- 1/B is taken into consideration, plea of defendant can not be accepted that he is the sole proprietor of the suit land. Though presumption of truth is attached to the record of right, but the same is rebuttable. But, interestingly, in the instant case, defendant No.1 has not been able to rebut the presumption attached to aforesaid document i.e. Ext. PW- 1/B, because no evidence has been led on record by defendant No.1, suggestive of the fact that that he is the sole proprietor /owner of suit land. Apart from above, defendant has nowhere disputed the correctness of Ext PW- ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 11 1/B, as clearly emerges from written statement. In the written statement having been filed by defendant No.1 itself, though he claimed that suit property was partitioned in family arrangement and he had built the house on suit land from his .
own resources, but there is no evidence available on record to prove aforesaid contentions having been made in the written statement, while disputing the claim of the plaintiffs.
12. PW-1 Beli Ram categorically stated before the Court that suit property is joint and unpartitioned, which further consists of two storied residential house existing over the suit land, which is surrounded by vacant space. It has also come in his statement that the property was joint and unpartitioned, as such, same is liable to be partitioned. In support of his aforesaid contention, PW-1 i.e. plaintiff No.1 Beli Ram placed reliance upon document, Ext. PW-1/B, as has been discussed above. Plaintiffs also examined PW-2 Tulsi Devi, PW-3 Roshan Lal and PW-4 Ranjeet Singh, who stated on oath that the suit property is joint between the parties and two storied residential house exists over the suit land. Careful perusal of the cross-examination conducted upon these witnesses, nowhere suggests that defendant No.1 was able to extract anything contrary to what was stated in their examination-in- chief.
13. PW-1, Beli Ram, in this cross-examination admitted that old house had fallen but he specifically denied that all the ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 12 responsibility was taken by defendant No. 1 with regard to family. Similarly, he denied that house was built from his own resources by defendant No.1. Though, DW-2 Govind Ram and DW-3 Khima Ram, while making their statements on oath, .
stated that plaintiff N0.1 and defendant No.1 were living separately and cultivating the lands separately, but admitted that they used to reside separately in the ancestral house. Aforesaid witnesses also admitted that ancestral house had fallen and some of the land was vacant at the spot. DW-1 Govind Ram stated that house existed over suit land, belonged to him as he had exclusively contributed for the construction of the house, but in his statement, it has come that he had given lower story to plaintiff No.1, for living till the time, he constructed his own house. He further contended that plaintiff No. 1 had no right, title or interest over the residential house. DW-1 further stated that plaintiff No.1 was serving as a Conductor in HRTC. However, the cross-examination conducted upon DW-1, if is perused carefully, he categorically admitted that at the time, when the house was built, they were living jointly and their father was alive. He also admitted that all the responsibility of family was taken by their father. Most importantly, in his cross-examination, he admitted that house was joint and they have equal shares. DW-1 further stated in his examination-in-chief that house was given by defendant No.1 to plaintiff No.1 Beli Ram for living. Similarly, ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 13 he feigned ignorance that separate land was given to plaintiff No.1 for the construction of house. While answering the suggestion put to the defendant that plaintiff shared residential house existing over suit land with him, he feigned .
his ignorance and admitted that new house was constructed about 40 years ago, and at that time, parents of parties were alive. He also admitted that parents of the parties were alive and they have been looking after affairs of the family. Defendant Govind Ram, in his cross-examination stated that suit property has been partitioned but he was unable to produce any document with regard to the partition or any particulars thereof. He also admitted that suit property is shown to be in joint ownership and possession of all the brothers and sisters, but he could not produce any document to show that house was exclusively constructed by him. Defendant No.1 also examined DW-3 Khima Ram, who worked as a Mason during the construction of the house over the property. DW-3 stated that expenses of construction were borne by Govind Ram. In his cross-examination, he admitted that house was constructed about 40-50 years ago, when parents of parties were alive. He also admitted that at that time, family was joint and Naradu was head of family and all the expenses were made jointly in the family at the instance of Naradu.
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14. Careful perusal of statements having been made by the defendant's witnesses before the Court, clearly proves on record that suit property is jointly owned and possessed by the parties. Though defendant No.1 Govind Ram, made an attempt .
to prove on record that after collapse of house, he constructed new house after spending from his own pocket, but there is no evidence led on record in this regard and otherwise also, if, for the sake of arguments, it is accepted that reconstruction of house was done at the expenses of defendant No. 1, even in that eventuality, rights of the plaintiffs can not be defeated, because, admittedly, property is jointly owned and possessed by the parties.
15. Apart from above, defendant's own witnesses have admitted in their cross-examination that house was reconstructed during the life time of their father and all the expenses were borne jointly in the family, at the instance of head of family i.e. Naradu. Defendant No.1 himself admitted that the house was construction about 40-50 years ago, when his father was alive.
16. Similarly, though defendant No.1 asserted that plaintiffs No.2 and 3 and proforma defendant No.2, are living separately in their families, but denied that they have any interest in the suit property. But interestingly, there is no evidence worth the name, adduced on record by defendant No.1 to prove that plaintiffs No.2 and 3 and proforma defendant No. 2, have no ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 15 right in the suit property, after marriage, because, it clearly emerges from the revenue record described hereinabove that parties are joint owners of the suit property i.e. house and vacant space.
.
17. Hence, no illegality or infirmity can be found in the findings of learned Courts below that since rights of plaintiffs No. 2 and 3 and proforma defendant No.2 have not been denied by the plaintiff No.1 and defendant No.1, they are also entitled to share in the suit property, in accordance with revenue record. Similarly, though it is claimed in the written statement that suit property stands partitioned inter se parties, in terms of a family arrangement/ settlement, but there is no evidence led on record in support of this claim and as such rightly the courts below, while accepting the plea of the plaintiffs for partition of suit property, held that suit property is jointly owned and possessed by the parties.
18. Mr. Thakur, learned Senior Advocate, specifically invited attention of this Court to the statement of PW-1 to demonstrate that he had admitted factum of partition /family arrangement in his statement, but perusal of statement of PW- 1 nowhere supports the claim of the defendant, because, while answering suggestion put to him, plaintiff(PW-1) stated that the family partition was forged.
19. This Court also examined the judgments relied upon by the learned counsel representing defendant No.1 i.e. Ambanna ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 16 v. Ghanteappa, AIR 1999 Karnataka 421 and Narinder Chand Mehra and another versus Surinder Chand Mehra and others, (1999-2) 122 P.L.R. 16, to demonstrate that no decree of partition can be passed by court merely on the basis .
of pleadings and site plan is necessary for identification and description of house, which is sought to be partitioned. There can be no quarrel with regard to the proposition of law that as per Order 7 Rule 3 CPC, particulars of property, sought to be partitioned, are required to be given in the plaint, but in the instant case, as has been discussed in detail, plaintiffs have given details of property sought to be partitioned and as such judgments referred to hereinabove had no applicability to the facts and circumstances of the case at hand.
20. Needless to say that learned trial Court has only passed preliminary decree of partition inter se parties qua suit property and final decree shall be drawn after report of revenue official, who shall identify the property and put the owners into possession as per their shares. Hence, in view of specific details given in the plaint, there was no requirement as such of site plan, in the present case.
21. Consequently, in view of the evidence led on record by plaintiffs, which is further corroborated by the defendant's witnesses, this Court sees no illegality or infirmity in the impugned judgments and decrees passed by the learned Courts below and same deserve to be upheld.
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22. Substantial question of law is answered accordingly.
23. Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, has held as under:
.
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
24. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-appreciating the evidence available on record, but as emerges from the case ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 18 referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse.
25. In this regard reliance is placed upon judgment passed .
by Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161 wherein the Court held:
"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.555-56) "24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact.
But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law.
Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP 19 ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same." (pp.174-175)
26. Accordingly, the appeal lacks merits and is dismissed. Judgments and decrees passed by the learned Courts below are upheld. Pending applications, are disposed of. Interim orders, if any, are vacated.
(Sandeep Sharma) Judge April 25, 2017 (Vikrant) ::: Downloaded on - 27/04/2017 23:59:28 :::HCHP