Madhya Pradesh High Court
Suresh vs Jagdish Prasad on 29 July, 2019
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S.A.No.1064/2008
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH: HON.SHRI JUSTICE RAJEEV KUMAR DUBEY,J.
SECOND APPEAL 1064/2008
Suresh
Versus
Jagdish Prasad (dead), through LRs and others
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Shri Chandrahas Dubey, Advocate for the appellant.
Ku. C.V. Rao, Advocate for the respondent nos. 1 & 2.
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JUDGEMENT
(Reserved on 27/06/2019) (Delivered on 29/07/2019) This Second Appeal has been filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 14/5/2008 passed by Ist ADJ, Katni in Civil Appeal No.8-A/2008 whereby learned ADJ affirmed the judgment and decree dated 31/1/2008 passed by IInd Civil Judge Class-I, Katni in Civil Suit No.9-A/2006 whereby learned Civil Judge rejected the civil suit filed by the appellant/plaintiff no.1 and respondent Nos. 11,12,13, late Vijay (earlier respondent no.10) and Savitri Devi (earlier respondent no.14) praying for declaration that suit properties mentioned in Schedule A,B,C,D and E annexed with the plaint (hereinafter referred to as suit land) are Joint Family Property of plaintiffs and defendant Nos. 1 to 8 and gave separate possession of the plaintiffs' 1/4th share in the suit land after partition by metes and bounds. A gift deed executed by Lt. Smt. Foola Bai dated 05/06/1981, the order of Tehsildar, Tehsil Rithi and settlement deed dated 14/07/2001 and the order of Tehsildar, Tehsil Rithi dated 20/10/2003 2 S.A.No.1064/2008 regarding partition of suit land were also sought to be declared to be null and void.
2. This is notable here that earlier Civil Suit no. 15A/2005 was filed by appellant Suresh, respondent no. (10) Vijay, (11) Ashok Kumar, (12) Kuldeep (13) Sushila Devi and (14) Savitri Devi and against the judgement & decree of that suit passed by Civil Judge Class I, Katni, the first appeal was also filed by them. But, this second appeal was filed only by Suresh Plaintiff No.1 by making remaining plaintiffs as respondents nos. 10 to 14.
3. During Pendency of this appeal, the respondent No.1/1st defendant of the suit Jagdish died and his L.Rs brought on record as respondent 1A to1G by names Vinay Kumar, Rakesh Kumar, Anil Kumar, Aarti Devi, Anand Kumar, Manju Devi and Akhilesh Chanpuriya vide order dated 25/02/2013. Jagehwar Prasad, who was the respondent No.3/3rd defendant of the suit also died and his L.Rs brought on record as respondents 3A to 3F by names Savitribai, Anup Chanpuriya, Arvind Chanpuriya, Prashant Chanpuriya, Pushpa Devi and Chhitij Chanpuriya vide order dated 25/02/2013 and Vijay, who was the respondent no.10/plaintiff no.2 of the suit died and his L.Rs brought on record as respondents 10A and 10B by name Vijaya Devi and Raj Chanpuriya vide order dated 25/02/2013. Savitri Devi Respondent No.6/ 6th Plaintiff of the original suit and newly added respondent 3A Savitribai also died during the pendency of this appeal their names were also deleted vide order dated 01/11/2013. The appellant and respondents shall be referred to as described in the suit.
4. The family tree of the Plaintiffs and the Defendants of the suit which is undisputed as thus:-
Late Shri Chhotelal 3 S.A.No.1064/2008 | ...........................................................................................
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Baijnath (Died on 17.12.75) Raghunath Prasad (Died on 5.7.1944)
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Rameshwar Prasad Jagdish Prasad Foola Bai (wife)
Died on 7.12.90 Died on 12.11.83
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Vijay Vinod (Dead) Suresh Ashok Savitri Devi(wife)
Pla.no.2 27.11.82 Pla. no.1 Pla.no.3 Pla. no.6
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......................................
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Sushila Bai (wife) Kuldeep (son)
Pla.no.5 Pla.no.4
the heirs of late Raghunath Prasad
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.......................................................................................
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Jageshwar Mahendra Narendra (Dead) Sukkhi Bai(wife dead)
Def.no.3 Def.no.4 23.12.2000 12.4.90
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| | | | Dhirendra Virendra Shailendra Savitri Bai (wife)
5. Brief facts of the case which are relevant to the disposal of this case are that plaintiffs Suresh, Vijay, Ashok, Kuldeep, Sushila Devi and Savitri Devi filed a Civil Suit no. 15A/2005 averring that the suit land is a Joint Family Property which has never been divided between the parties.
Raghunath died in the year 1944 so, the suit land was managed by Baijnath and his wife Foola Bai. Rameshwar and defendant no.3 Jageshwar Prasad had taken care of Baijnath and Foola Bai. The defendant no.2 Baijayanti Bai never made any contribution in their care. It is further averred that from 4 S.A.No.1064/2008 some of the suit land, situated at village Imaliya, a part of that was illegally sold by defendant no.1 Jagdish to Raghuveer Prasad, Motilal, Lahairam and Jaggu Patel and kept the consideration amount with him. In the year 2003, the defendant no.1 and 2 by making other defendants also, the party filed an application for partition of suit land before Revenue Court which was registered as 20A/27(2001-2002). In that case, defendant no.1 relying on a Gift Deed dated 5/6/1981 allegedly executed by Late Foola Bai in favour of defendant no.2 demanded share for defendant no.2 in the suit land. At that time, plaintiff came to know that defendant no.1 Jagdish wrongly got the gift deed of some part of suit land executed from Late Foola Bai on 5/6/1981. While at that time, Late Foola Bai was suffering from paralysis, she did not have the power to understand, and was unable to execute the gift deed. Even from the Joint Family Property, one of the co-sharer is not competent to donate specific part of the suit land before partition. So, plaintiff Suresh filed objection before Tehsildar in the proceeding. However, Tehsildar without considering the plaintiff's objection and without giving intimation to plaintiff Suresh, wrongly passed the order and partitioned the suit land on the basis of settlement deed. While said deed was not accepted by plaintiff Suresh and was not signed by him. Against the impugned order of Tehsildar, plaintiff Suresh also filed appeal before S.D.O. Revenue which was also wrongly dismissed by S.D.O. Revenue. That orders are illegal and not binding on plaintiffs. So, it be declared that the plaintiffs are the joint owner of suit land and the said land be partitioned and possession of ¼ of the suit land share be given to the Plaintiffs.
6. The respondent/defendant no.1 and 2 in their written statements averred that the suit land was partitioned nearly 40 years back by Baijnath Prasad in two parts, one of which was given by him to heirs of Late Raghunath Prasad one was kept by himself. Thereafter, Baijnath Prasad has 5 S.A.No.1064/2008 also partitioned his part of suit land into three parts, out of which one part was given by him to his elder son Rameshwar Prasad, second part to younger son Jagdish and the remaining third part was kept by Baijnath Prasad for himself. Baijnath Prasad was never happy with his elder son Rameshwar Prasad. Baijnath Prasad executed a will of his estate in favour of his wife Foola Bai on 25/05/1975. On the basis of said will after the death of Baijnath Prasad, his wife Foola Bai become the owner of part of the suit land which was kept by Baijnath Prasad for himself. Rameshwar Prasad had also not taken care of Foola Bai. She was happy with defendant no.2 by her care therefore, she had executed registered Gift Deed of her part of suit land in favour of defendant no.2 Baijayanti Bai on 05/06/1981. The land situated at village Imaliya was sold by Late Rameshwar Prasad and he also took the consideration of said sale. It is further averred that at the time of consolidation of holdings (chakbandi) the land which came into the share of defendant no.3,4,6,7 and 8 has broken in to the small pieces. So, they have raised certain disputes regarding part of suit land situated at village Simra which was earlier partitioned by the Naib Tehsildar between Baijnath Prasad and the heirs of his brother Ragunath Prasad in the year 1975. Therefore, in order to avoid any inconvenience respondent/defendant no.3 to 8 has proposed re-partition of that land on the basis of their convenience which was agreed by the respondent/defendant no.1 and 2. Although, the plaintiff Suresh had filed objection before Tehsildar but Tehsildar rightly rejected the objection and passed the partition order. Late Baijnath Prasad partitioned the suit land 40 years back and that partition was accepted by Rameshwar Prasad. So the plaintiffs, who are the successor of late Rameshwar Prasad are not competent to challenge the said partition. Foola Bai had executed registered Gift Deed of her part of suit land in favour of Baijayanti Bai on 05/06/1981. Rameshwar Prasad had knowledge of the execution of the deed 6 S.A.No.1064/2008 from the beginning, but he did not challenged it, even plaintiffs are not challenged it quite a long time, so they are not entitled to challenge the said deed after 24 years of its execution. In this regard, the suit of plaintiffs is time barred and prayed for its rejection.
7. Defendant Nos.3 to 8 filed the written statement of admission and admitted the claim of plaintiffs.
8. On the basis of pleadings of both the parties, learned trial Judge framed seven issues and after recording the evidence of both the parties and hearing the arguments, dismissed the civil suit holding that the partition of suit land took place between the parties 40 years back and ever since the plaintiffs and the defendants are cultivating the land which came into their shares in the partition, so the suit land can not be partitioned again. Learned trial Court also held that the gift deed was executed by Foola Bai in the year 1981 and plaintiffs had knowledge of said gift deed from the time of its execution but they did not challenge it in time. So regarding challenge of gift deed, the civil suit is time barred. Being aggrieved from that judgment, appellant filed Civil Appeal No.8-A/2008 which was also dismissed by the Ist ADJ, Katni. Being aggrieved from that judgment, only plaintiff no.1 Suresh filed this appeal.
9. In this appeal, vide order dated 19/3/2010 this Court framed the issue "whether finding relating to the partition recorded by the Courts below is a perverse findings which is not supported by the evidence on record ?"
10. Learned counsel for the appellant submitted that the burden of proving the fact that the said land was partitioned way back by Baijnath Prasad is on defendant no.1 and 2 but they did not produce any reliable evidence in this regard. From the evidence produced by the plaintiffs in support of their claim and from the statements of defendants witnesses, as well it is proved 7 S.A.No.1064/2008 that the suit land was never partitioned between them. Plaintiffs and defendants only on the basis of family arrangement, are in possession of part of suit land and are cultivating that part of the suit land. Jagdish Prasad, defendant no.1 did not specifically stated that if partition had taken place way back than on what time did it take place and which part of suit land came into share of plaintiffs and defendants each. If the suit land had already been partitioned between the parties, then what was the need for Jagdish Prasad to file an application of partition of land before Tehsildar, Rithi in the year 2000-2001 which clearly shows that the suit land was never partitioned earlier. The plaintiff Suresh had filed an objection before the Tehsildar in the partition proceedings but Tehsildar without hearing appellant Suresh, wrongly passed the partition order which is void. The issue of ownership of land was raised by appellant Suresh before Tehsildar. In that situation, Tehsildar had not right to decide the ownership of said land. Likewise in the gift deed, specific part of suit land is mentioned while any co-sharer has no right to gift the specific land from Joint Family Property to any one before partition of land. Even from the statement of defendant no.3 Jageshwar Prasad, it is apparent that at the time of execution of alleged gift deed, Foola Bai was not in a position to execute the deed, so that gift deed is also void. Learned trial court as well first appellate court without considering these facts wrongly rejected the plaintiff's claim. So, findings of both the courts below are not sustainable. On that basis, learned counsel of the appellant prayed that findings of both the court below be set aside and the suit of the appellant be decreed in toto.
11. Learned counsel for the defendant no.1 and 2 submitted that from the evidence produced by both the parties and the documents particularly which are the certified copies of the proceedings of Revenue Case no. 6(A-26) 72- 73 (Ex.D-4 to D-7), it is apparent that the part of suit land situated at village 8 S.A.No.1064/2008 Simra was partitioned by the then Naib Tehsildar, Katni vide order dated 15/3/1976 which clearly shows that the partition of suit land took place in the year 1976 between Baijnath Prasad and heir's of his brother Raghunath Prasad. Defendant no.3 Jageshwar Prasad admitted that except the land which is situated at village Amkuhi all other suit land was partitioned. From the evidence, it is also proved that the land situated at village Amkuhi has also been partitioned. The father of applicant Rameshwar did not challenge that partition in his lifetime. After partition, separate Bhu Adhikar Pustika (Ex.D-8 to D-11) were also prepared by the revenue officers that have also prepared in the name of appellant and defendant. The gift deed was executed by Foola Bai in the year 1981 and at the time of execution gift deed, her health was good and she is capable for executing the gift deed and Rameshwar Prasad, the father of appellant Suresh, having knowledge of the execution of gift deed by Foola Bai from year 1984 but he did not challenge that partition deed. So, the suit of the appellant regarding cancellation of partition deed is time barred. So learned trial Court as well appellate Court did not commit any mistake in holding that the suit land was partitioned between the appellant and defendant way back and they are in possession of his share and are cultivating that land since long. So, appeal has no force.
12. This court has gone through the record and arguments put forth by the learned counsel of both the parties. Defendant No.1 Jagdish deposed that the suit land was partitioned nearly 40 years back by Baijnath Prasad in two parts, one of which was given by him to heirs of Late Raghunath Prasad one was kept by himself. Thereafter, Baijnath Prasad has also partitioned his part of suit land into three parts out of which one part was given by him to his elder son Rameshwar Prasad, second part to younger son Jagdish and the remaining third part was kept by Baijnath Prasad for himself. Baijnath Prasad was never happy with his elder son Rameshwar Prasad. Baijnath 9 S.A.No.1064/2008 Prasad executed a will of his estate in favour of his wife Foola Bai on 25/05/1975. On the basis of said will after the death of Baijnath Prasad, his wife Foola Bai become the owner of part of the suit land which was kept by Baijnath Prasad for himself. Rameshwar Prasad had also not taken care of Foola Bai. She was happy with defendant no.2 by her care therefore, she had executed registered Gift Deed of her part of the suit land in favour of defendant no.2 Baijayanti Bai on 05/06/1981.
13. He further deposed that at the time of consolidation of holdings (chakbandi) the land which came into the share of defendant nos.3,4,6,7 and 8 has broken in to the small pieces. So, they have raised certain disputes regarding part of suit land situated at village Simra which was earlier partitioned by the Naib Tehsildar between Baijnath Prasad and the heirs of his brother Ragunath Prasad in the year 1975. Therefore, in order to avoid any inconvenience respondent/defendant no.3 to 8 has proposed re-partition of that land on the basis of their convenience which was agreed by the respondent/defendant no.1 and 2.
14. Although, appellant Suresh in his statement denied from the fact that his grandfather Baijnath had partitioned the suit land way back or gave one part of it to the heirs of his brother Raghunath Prasad, kept one for himself and thereafter, further partitioned his part of suit land into three parts out of which one was given to Rameshwar, father of appellant Suresh another to Jagdish Prasad (Defendant no.1) his second son and third part was kept by himself. He also deposed that the suit land was his ancestral property and no partition of the suit land was taken place between the heirs of Late Baijnath and Raghunath Prasad. Only on the basis of a family settlement, some part of suit land is being used by him and some by son of Jagdish, Jageshwar Prasad, Mahendra and heirs of Narendra each for agricultural work. He also 10 S.A.No.1064/2008 deposed that Tehsildar, Rithi vide order dated 20/10/2003 wrongly partitioned the suit land against which he had filed an appeal which was also wrongly rejected by the SDO. But in this regard, his statement does not appear to be correct.
15. Defendant No.1 Jagdish produced the copy of order sheets of Revenue Case no.06/A-27/72-73 (Ex.D-4) and partition schedule of the land situated at village Simra (Ex.D-6) and the partition order dated 25/3/1976 (Ex.D-7) passed by the Naib Tehsildar, Katni in Revenue Case no.6(A-26) 72-73 by which the Naib Tehsildar, Katni partitioned the suit land situated at village Simra between Baijnath and heirs of his brother Raghunath Prasad i.e. Jageshwar, Mahendra, Narendra son of Raghunath and Sukkhi bai, widow of Raghunath. Although, plaintiffs challenged that order. But, said order was passed by the Tehsildar in a judicial proceeding and the same was neither challenged by Rameshwar Prasad in his lifetime nor by plaintiffs. That order shows that the land situated at village Simra was partitioned in the year 1975-76 between the grandfather of appellant Suresh, Baijnath and heirs of his brother Raghunath. This fact is also supported by the revenue record (Khasara of the year 1993-94 to 1997-98) of the part of suit land (Ex.P-7 to Ex.P-20) produced by the plaintiffs themselves, in which only the names of heirs of Baijnath Prasad are mentioned. The name of heirs of Raghunath Prasad, Defendant No. 3 to 8 are not mentioned which also shows that the part of suit land which was situated at village Simra was partitioned earlier between Baijnath and the heirs of Raghunath Prasad.
16. Defendant No.3 Jageshwar also produced certified copy of a sale deed (Ex.D-14) by which son of Baijnath i.e. Rajeshwar and Jagdish Prasad sold the land survey no. 18 and 25 with total area 3.965 hectares situated at village Imalia to Jaggu, Raghhu, Raghuveer, Mulchand, Motilal and Smt. 11 S.A.No.1064/2008 Devki Bai on 9/01/1990. Jageshwar Prasad defendant No.3 also admitted in his statement that the heirs of Baijnath Prasad are left with no part of suit land at village Imlia as Jagdish Prasad and others had sold all the land at village Imlia which came in their part in the partition. Although, appellant Suresh deposed that Jagdish Prasad wrongly sold that land to Jaggu, Ragghu, Raghuveer, Mulchand, Motilal and Devki Bai but that sale deed was executed by Rameshwar, father of plaintiff Suresh and defendant no.1 Jagdish Prasad on 09/01/1990. Rameshwar did not challenge this sale deed in his lifetime, even appellant Suresh and other heirs of Rameshwar Prasad also did not file any suit to declare that sale deed void. So that sale deed is binding on plaintiffs. In that sale deed, it is mentioned that the land which is being sold by that sale deed has come into the share of Rameshwar, father of plaintiff Suresh and Jagdish Prasad in the partition. This in turn shows that the suit land was partitioned between Baijnath Prasad and heirs of his brother Raghunath Prasad way back and Rameshwar and Jagdish had sold their part of suit land situated at village Imliya.
17. Plaintiffs also produced the copy of record of right (Ex.P-1 to Ex.P-4) over the suit land situated at village Amkuhi, Kudri, Simra and Imliya wherein the name of Baijnath Prasad and the heirs of Raghunath Prasad i.e. Jageshwar, Mahendra, Narendra son of Raghunath and Sukkhi bai widow of Raghunath are mentioned as joint owner of the land. But in these documents, the position of suit land is mentioned on the basis of Jamabandi of the year 1954-1955. So, on the basis of the said documents, it can not be said that the suit land is still Joint Family Property and the partition of the said land has not been done as yet.
18. Although, in the Khasra of year 1994-95 to 1997-98 (Ex.P-5) of land survey no.317 situated at village Hardwara and the Khasra of the year 1996- 12 S.A.No.1064/2008 97 to 1998-2000 of the land survey no.147/2 situated at village Imliya (Ex.P-
6) the name of Rameshwar Prasad, Jagdish Prasad and defendant Mahendra, Ravindra etc. are mentioned but in the registered sale deed (Ex.D-3) executed by Rameshwar and Jagdeesh, it is mentioned that the land situated at village Imliya has been partitioned. So, only on the basis that the name of Rameshwar Prasad, Jagdish Prasad and the heirs of Raghunath Prasad is mentioned in (ExP-5 & Ex.P-6), the Khasra for the years 1993-94 to 1997- 98 on part of the suit land situated at village Hardwara & Imliya, it can not be said that the partition of said land has not been done.
19. Although, plaintiffs pleaded that they came to know regarding gift deed (Ex.P-26) for the first time in the year 2001 when Jagdish demanded a share in the suit land for Baijayanti Bai. But in the revenue record (Khasara for the years 1993-94 to 1997-98) of the part of the suit land situated at village Simra (Ex.P-7 to Ex.P-20) produced by the appellant himself, the name of Baijayanti Bai is also mentioned as land owner. Which shows that the name of Baijayanti Bai entered in the land record of the suit land prior to the year 1993-94. Even in the Sale Deed (Ex.D-14) which was executed by Rameshwar and Jadish, the name of Baijayanti Bai is also mentioned as seller of the land which shows that Rameshavar Prasad had a knowledge of that gift deed at that time also. So, the statement of appellant Suresh that he came to know about gift deed for the first time in the year 2001 also becomes false. So suit for declaring the gift deed allegedly executed by Foola Bai on 05/06/1981 void also becomes time barred.
20. Even defendant no.3 Jageshwar, son of Raghunath admitted in his statement that the partition of suit land situated at village Simra, Imliya, Kudri and Hardwara had taken place between Baijnath and Raghunath Prasad way back and heirs of Baijnath, Rameshwar Prasad etc. sold the land 13 S.A.No.1064/2008 of village Imliya to Jaggu Lodhi and others. So presently heirs of Baijnath Prasad have no share in the suit land situated at village Imliya. In this regard, he also filed registered sale deed (Ex.D-14). Although, he deposed that the partition of part of suit land situated at village Amkuhi, survey no.285 area 35.40 acres has not been done and also denied the suggestion that said land was partitioned and after partition the part of suit land as survey no.285/01 went in favour of Jagdish and Rameshwar Prasad and survey no.285/3 went in the part of his brothers and him. But in this regard, his statement does not appear to be correct. Because defendant no.1 produced the Khasra of said land (Ex.D-15) of the year 2006-07 in which the land of survey no. 285/3 is mentioned in the name of Jageshwar and other heirs of Raghunath Prasad which shows that the part of suit land which is situated at village of Amkuhi was also partitioned between Baijnath and the heirs of his brother late Raghunath Prasad. So from the evidence and the documents produced by the parties, it appears that the suit land was partitioned between Baijnath and Raghunath Prasad way back. Appellant wrongly filed the suit stating that no partition of suit land had taken place earlier between the heirs of Chhotelal i.e. Baijnath Prasad and the heirs of his brother late Raghunath Prasad.
21. The judgements of the Apex Court passed in State Bank of Travancore vs. Aravindan Kunju Panicker (Supra), Addagada Raghavamma and others vs. Addagada Chenchamma and others (Supra) and Garara Vishnu Gosavi vs. Prakash Nanasaheb Kamble and others (Supra) relied on by the learned counsel of the appellant do not help applicant much. Because the issue whether the suit property was earlier partitioned or not is a matter of fact and same will be decided by the evidence produced by the parties in that case. In the instant case from the oral as well as documentary evidence produced by the parties as discussed 14 S.A.No.1064/2008 above, it is clearly proved that the suit land was earlier partitioned between Baijnath Prasad and the heirs of Raghunath Prasad.
22. This is not the plaintiff's case that the suit land which came in the share of Baijnath Prasad in the partition that took place between Baijnath Prasad and the heirs of his brother Raghunath Prasad was not further partitioned between the heirs of Baijnath Prasad. Plaintiffs filed the suit averring that the whole suit land was the Joint Family Property and the partition of that land has not taken place earlier. While from the statements of the witnesses and the documents produced by the parties of the case as discussed above, it is clearly proved that the suit land was earlier partitioned between Baijnath and Raghunath Prasad, so learned trial Court as well as appellate Court did not commit any mistake in rejecting the plaintiffs' suit observing that the suit land was earlier partitioned between Baijnath Prasad and the heirs Raghunath Prasad. So, it can not be partitioned again between the heirs of Baijnath Prasad and the heirs of Raghunath Prasad and suit regarding declaring gift deed void is time barred. So, there is no perversity in the findings of both the court below.
Hence, appeal has no force and rejected with costs.
(Rajeev Kumar Dubey) Judge m/-
Digitally signedby MONIKA CHOURASIA Date: 2019.08.01 11:33:18 +05'30'