Punjab-Haryana High Court
(O&M;) Jhandu Etc vs Khajani Etc on 23 April, 2018
Author: Amit Rawal
Bench: Amit Rawal
RSA No.1747 of 1987 (O&M) {1}
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
1. RSA No.1747 of 1987 (O&M)
Date of decision:23.04.2018
Jhandu (deceased through LRs) and others ... Appellants
Vs.
Khazani and others ... Respondents
2. RSA No.4788 of 2003 (O&M) Sujan Singh ... Appellant Vs. Subhash Chand and others ... Respondents
3. RSA No.4789 of 2003 (O&M) Surajbhan ... Appellant Vs. Subhash Chand and others ... Respondents
4. RSA No.4790 of 2003 (O&M) Chanderbhan and others ... Appellants Vs. Subhash Chand and others ... Respondents CORAM: HON'BLE MR. JUSTICE AMIT RAWAL Present:- Mr. Girish Agnihotri, Senior Advocate with Mr. Saurabh Gulia, Advocate for the appellants.
Mr. Ashish Aggarwal, Senior Advocate with Mr. Aman Pal, Advocate Ms. Aashna Gill, Advocate Mr. Rajneesh Chadwal, Advocate 1 of 17 ::: Downloaded on - 06-05-2018 14:19:56 ::: RSA No.1747 of 1987 (O&M) {2} Mr. Parunjeet Singh, Advocate for respondents No.4 and 6 to 8.
Mr. Pardeep Chhoker, Advocate for Mr. P.R.Yadav, Advocate for respondents No.1 and 2.
Mr. Bhupinder Ghai, Advocate for respondent No.3.
Mr. Subhash Sharma, Advocate respondent No.5 in person. AMIT RAWAL J.
This order of mine shall dispose of four Regular Second Appeals bearing No.1747 of 1987, 4788, 4789 and 4790 of 2003.
RSA No.1747 of 1987 is arising out of civil suit no.52 of 1979 titled as Jhandu and another Vs. Smt. Khajani and others; RSA No.4788 of 2003 arising out of civil suit no.137 of 1998/1988 titled as Sujan Singh Vs.Subhash Chand and others; RSA No.4789 of 2003 arising out of civil suit no.1128 of 1998/1988 titled as Surajbhan Vs. Subhash Chand and others; and RSA No.4790 of 2003 arising out of civil suit no.139RT of 1998/1988 titled as Jhandu Vs. Subhash Chand and others.
The decision of three Regular Second Appeals bearing Nos.4788 to 4790 of 2003 depends upon the decision of RSA No.1747 of 1987 which is a lead case, therefore, the facts are being taken from that case.
Before adverting to the facts as well as to the submissions of learned Senior counsels representing the parties to the lis, it would be apt to give preface of the matter.
The aforementioned appeals were allowed by this Court, vide order dated 13.07.2010. The said decision was assailed before Hon'ble 2 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {3} Supreme Court, vide SLP Nos.31242-31244 of 2010. After granting leave, it was given civil appeal nos.339-341 of 2016. Vide order dated 18.01.2016, the judgment of this Court was set aside by remitting the matter back to this Court for fresh decision as expeditiously as possible preferably within a period of one year.
The civil miscellaneous applications bearing No.4333-C of 2017 has been filed for listing of the appeals for actual hearing was allowed and 2401-C of 2017 under Order 22 Rule 10 read with Order 1 Rule 10 CPC read with Section 151 CPC for impleading the applicants as respondents No.9 to 12 by apprising the Court that the matter has been remitted back by the Supreme Court to this Court and this Court, vide order dated 08.05.2017, ordered for listing of C.M.No.2401-C of 2017 along with other connected matters on 19.07.2017. On 19.07.2017, the matter could not be taken up. On 04.09.2017, application bearing No.10619-C of 2017 for placing on record the documents was allowed and this Court listed the matter for 08.11.2017 by summoning the record of Courts below.
However, in the meantime, various other applications, i.e.,C.M. No.12392-C of 2017 under Order 41 Rule 27 read with Section 151 CPC at the instance of applicant-respondent no.5 had also been moved. The application bearing No.2401-C of 2017 was withdrawn, vide order dated 01.03.2018. On 21.03.2018, the arguments were heard and order was reserved.
One Jhandu son of Man Singh and Chander Bhan minor son of Jhandu filed a civil suit No.52 of 1979 claiming declaration to the effect that 3 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {4} they were owners in possession of the agricultural land comprising khewat no.50, khatoni no.1723 measuring 194 kanals 14 marlas situated in village Maheshwari, Tehsil Rewari by challenging the partition of land being illegal and not binding upon the plaintiffs and defendant no.1. It was stated that plaintiff No.1 and Lila son of Ramji Lal were owners of the land to the extent of 1/6th share each; and Lila son of Har Dayal and Sheodan alias Sheodan (since deceased was being represented by Khajani and Misri- daughters) were owners of 1/3rd share each. The land measuring 1 kanals 2 marlas was with Chunna son of Zalim as Dholi and another land measuring 10 kanals 1 marla was under PWD Road. Lila son of Ramji Lal and Lila son of Har Dayal sold the entire land through registered sale deed to plaintiff no.1-Jhandu,whereas, Sheodan was the owner remaining 1/3rd share, also sold the land measuring 58 kanals 14 marlas out of his share, vide registered sale deeds dated 18.01.1955 and 02.06.1960 to plaintiff no.1. In lieu thereof, name of plaintiff no.1 was entered in the column of cultivation regarding the land in the jamabandi for the year 1963-64. Sheodan subsequently also sold his remaining land measuring 6 kanals 6 marlas alongwith other rights to plaintiff no.1 vide registered sale deed dated 12.05.1966. However, in the jamabandis for the years 1968-69, 1973-74, name of Sheodan remained to be continue in jamabandi. It was averred that plaintiff no.1 in mutual partition got some land transferred in favour of plaintiff no.2, thus, plaintiff no.2 also became owner of the suit land.
Plaintiff further pleaded that jamabandi for the year 1973-74, comprising of killa no.5/1, 16 and 25 of rect. no.14 and killa no.5/1 of rect.
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no.25 and khata no.14, khewat no.13 measuring 20 kanals 2 marlas was shown in the ownership of plaintiff no.1 to the extent of 2/3rd share, whereas, remaining 1/3rd was owned by Sheodan in the same manner. Similarly land measuring 16 kanals 17 marlas comprised in killa no.7, 9 rect. no.51 khata no.5 khewat no.14 was owned by plaintiff to the extent of 2/3rd share; remaining 1/3rd share in the name of Sheodan and the remaining land in the name of Lila son of Ramji Lal. Due to inadvertence, name of Sheodan continued for 1/3rd share for the land measuring 32 kanals as described in para 12 of the plaint. The aforementioned entries were challenged being wrong and incorrect. It was alleged that while taking undue benefit of aforementioned entries to the extent of 1/3rd share referred to in para 8 of the plaint, defendants no.1 and 2, namely Sheodan (since deceased) and Lila son of Ramji Lal filed an application for partition in the Court of Assistant Collector Ist Grade, Rewari and despite being objected to by plaintiff no.1, the order of partition was passed. The order of partition pertaining to land measuring 1 kanal 12 marlas of killa no.25/1 of rect. no.14, 5 kanals 2 marlas of killa no.5/1/1 of rect. no.25, was given to defendants no.1 and 2, whereas the said land at the spot was owned and possessed by plaintiff no.1. It was further averred that defendants no.1 and 2 filed another application for partition of land in respect of land mentioned in para 9 of the plaint which was pending adjudication at the time of institution of suit. The plaintiffs alleged that the defendants did not have any right or title.
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Defendants no.1 and 2 contested the suit, whereas, defendant no.3 was proceeded against ex parte. It was stated that the suit was barred by law of limitation, estoppel, for, the plaintiffs had not raised any objection in the partition proceedings nor preferred any appeal. In fact, they admitted the correctness of the entries of the revenue papers and jamabandi. On merit, it was stated that Sheodan never executed any sale deed in favour of the plaintiff.
The trial Court on the basis of pleadings of the parties framed the following issues:-
"1. Whether the plaintiffs are owners in possession of the suit land? OPD
2. Whether the suit is barred by time? OPD
3. Whether the plaintiffs are estopped by their acts and conduct to file the present suit? OPD
4. What is the effect of not taking the plea of title in the partition proceedings? OPD
5. Whether the sale deeds alleged in para nos.4 and 5 of the plaint are void? OPD
6. Relief."
The trial Court on the basis of evidence brought on record, vide judgment and decree dated 28.11.1980 dismissed the suit. The aforementioned judgment and decree was assailed before the Lower Appellate Court by filing civil appeal no.344 of 1985.
During the pendency of the appeal, the Lower Appellate Court, 6 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {7} vide order dated 05.01.1985 sought the report from the trial Court with regard to finding on issue no.1. The trial Court submitted the report dated 11.01.1986 while deciding the issue against the plaintiff. The Lower Appellate Court, vide judgment and decree dated 25.02.1987 dismissed the suit on the ground that appellant-plaintiffs failed to connect the numbers of land obtained in lieu of land purchased Ex.PW7/1, i.e.,sale deed as there were three sale deeds, for, in the previous judgment and decree, the trial Court had only given the finding with regard to one sale deed i.e., Ex.PW7/1 and not with regard to Ex.P6 and Ex.P7. It is in this background of the matter, Regular Second Appeals have been filed and being re-heard after remand from Hon'ble the Supreme Court.
It is pertinent to mention here that during the pendency of the first appeal, daughters of Sheodan sold the property in dispute to respondents no.4 to 8, who were impleaded before the Lower Appellate Court.The respondents no.4 to 8 filed the civil suits aforementioned. Those suit were consolidated and all the suits were dismissed, therefore, Regular Second Appeals No.4788 to 4790 of 2003 have been filed.
Mr. Girish Agnihotri, learned Senior counsel assisted by Mr. Saurabh Gulia, Advocate for the appellants submitted that judgments and decrees of the Courts below are not sustainable in the eyes of law, for, khatoni parmaish Ex.D2 has not been read in correct perspective. The Lower Appellate Court had not applied its mind to the all evidence available on record for the purpose of testing the illegality arrived at by the trial Court. Non-advertence to the findings or record itself is a perversity giving 7 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {8} rise to the determination of substantial questions of law. Khatoni paimaish Ex.D2 tallied with khasra numbers pertaining to pre and post consolidation.
He further submitted that defendants did not challenge the sale deeds. The land pertaining to the sale deed and the suit property was same, for, two set of survey numbers had been mentioned, i.e, one mentioned in the sale deed and other in the plaint which actually related to same portion of land. The jamabandi for the year 1963-64, Ex.P12 revealed that total land was 259 kanals 17 marlas out of which 10 kanals 1 marla was utilized for construction of road, whereas, 14 kanals 2 marlas was given to Dholi, thus, 194 kanals 14 marlas came to the share of Jhandu son of Mouji, Lila son of Bahadur and Sheodan, father of respondents No.1 and 2 to the extent of 1/3rd share each. Sheodan came in possession over 64 kanals 18 marlas. Sale deeds Ex.P7, Ex.P6 and Ex.PW7/1, showed that 6 kanals 15 marlas land was to be taken out from the land of Sheodan, therefore, 58 kanals 3 marlas land remained under dispute. PW4-Brij Mohan Patwari stated that as per jamabandi for the year 1963-64, khewat number of this land was 15, though PW9 deposed that no specific khewat was allotted to the land of Sheodan. Both the Court below over looked the statements of PW4 and PW9 and also Ex.P10 and Ex.P12 by erroneously relying upon the documents Ex.D1 to Ex.D3. The respondent-defendants failed to prove their case as the appellant-plaintiffs were in continuous possession over the land in dispute. The land in dispute had not been partitioned, therefore, Sheodan could not have made a sale deed of specific khasra numbers. Even if the sale at the instance of Sheodan is accepted, it could not have been made being in 8 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {9} violation of Section 9 of The East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as "the Act").
There is no bar for the co-owner to sell his share in the absence of partition and the sale cannot be said to be void, particularly when specific khasra number is mentioned and it would not render the sale as void.
Per contra, Mr. Ashish Aggarwal, Senior Advocate with Mr. Aman Pal, Advocate, for respondents No.4 and 6 to 8 has referred to the contents of application bearing No.12392-C of 2017 filed under Order 41 Rule 27 CPC to submit that two applications at the instance of Khazani and Misri, daughters of Sheodan, seeking partition of agricultural land, which was subject matter of present regular second appeals, were filed, wherein, Jhandu filed reply to one of the partition applications and categorically admitted 1/3rd share of the predecessor-in-interest of the applicants, i.e. Khazani and Misri. On 7.12.78, Jhandu, father of appellant/plaintiff No.1(i) to (iii) and plaintiff no.2, suffered a statement that he had no objection in the partition of the land in dispute. Similarly other two applications for partition in addition to the aforesaid application (Annexure A-1) were filed by the daughters of Sheodan, i.e., respondents No.1 and 2, wherein also Jhandu suffered a statement on oath that he had no objection in the partition of the land in dispute but stated that he wanted the partition of whole agricultural land in all khewats. The aforementioned applications and statement on oath dated 7.12.1978, i.e., Annexures A-1 to A-3, were sought to be brought on record by way of additional evidence.
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It was next contended that actual physical possession of the agricultural land had also been delivered on spot to the applicant/respondent no.5, vide rapat roznamchas no.329, 330 and 331 dated 19.05.1987, Annexures A-4 to A-6. For understanding the revenue documents, like khatauni parmaish, super imposed aks shajra (Annexure A-7) is essential and necessary for adjudication of the appeals, for, until and unless the aforementioned document is not looked into, it cannot be determined whether the present killa numbers are corresponding to the previous khasra numbrs in terms of bighas and biwas irrespective of ownership. The plaintiff had come with a different stand in the plaint vis-a-vis stand taken in the reply to the partition applications submitted before the Assistant Collector Grade I, Rewari, wherein, he admitted 1/3rd share of Sheodan being represented by daughters. Though the aforementioned orders of Assistant Collector were challenged in the suit but the aforementioned documents were neither produced or brought on record as they were afraid of acknowledging to the factum of admission of 1/3rd share. The aforementioned order had attained finality and was never challenged by availing the remedy of appeal before the revenue Court. The plaintiffs did not disclose this fact even before the consolidation authorities in 1959, therefore, the documents Annexure A-1 to Annexure A-7 are necessary and essential to be taken on record for proper and effective adjudication of the present appeals. Notice of this application had already been issued and reply has been filed.
Mr. Agnihotri, learned Senior counsel submitted that
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ingredients of Order 41 Rule 27 CPC have not been complied with. No explanation has come forth in not complying with the aforementioned provisions. There is bar to the parties to produce additional evidence whereby there is compelling circumstances of not bringing on record "despite exercise of due diligence". The entire thrust of the applicants had been to delay the adjudication of the present appeals. Moreover, the application has been filed at the belated stage. He further submitted that the respondents cannot be permitted to raise a plea in the absence of challenge to the sale deeds which was a registered document and carried a presumption of truth.
I have heard the learned counsel for the parties, appraised the judgments and decrees as well as record of the Courts below and of the view that there is force and merit with regard to the contents of the application, for, it would enable this Court to pronounce the judgment as well as for doing the substantial justice. The aforementioned documents have not been denied by the respondents. On merit, it was argued that sale deed dated 08.01.1959, Ex.PW7/1 pertaining to 12 bighas 18 biswas for a sum of Rs.2600/- having khasra numbers 119(9-2), 365(5-9), 370(1-12), 375(7-7), 379(4-9), 383(1-14), 117 M (1-14-14), 117M(7-7) and 376(0-2).
No mutation reflected in the revenue record with regard to the aforementioned sale deed. PW7-Sultan Singh son of Kanhaya Lal in cross- examination stated that age of Sheodan was about 65 years and he was not ill but he was under the influence of Jhandu. The registered sale deed was about 12/13 bighas. Sheodan was not able to understand the execution of 11 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {12} sale deed. No scribe, much less his register has not been brought on record for authentication of the aforementioned sale deed. In fact, the sale deeds were without any consideration. One of the partition applications was 01.02.1978, wherein Jhandu did not object to the partition proceedings. Rapat Roznamcha dated 19.05.1987 (Annexure A-4 to Annexure A-6) bearing Nos.329 to 331 showed that the possession had been delivered to the respective parties. No documentary evidence has been brought on record to connect the property vis-a-vis pre and post consolidation. As post consolidation, the land was 364 kanals 11 marlas, whereas in khatoni parmaish, it was shown as 304 kanals and 11 marlas. There is no record prior to 1963-64. Khatoni parmaish is only a measurement and not document of title. Ex.D3 showed different khewat numbers with regard to property referred to in the sale deeds. There were different khewats than the one referred to in the sale deeds. Khatoni parmaish is a record of rights after completion of consolidation. The corresponding previous numbers did not at all mean that appellants had become the owners of land which were having the same numbers. The filing of suit in the year 1979 by claiming the right in the property by virtue of sale deeds of 1959, 1960 and 1961 was also barred by law of limitation. There was no pleading of land of khewat of having area 109 kanals 17 marlas. The plaintiffs' witnesses had not been specific and coherent, rather ignorant regarding how much area of land was to be sold by way of sale deeds Ex.P6, Ex.P7 and Ex.PW7/1. With regard to main appeals, I am of the view that there is no force and merit in the submissions of Mr. Agnihotri, for, jamabandi for the year 1963-
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64 showed the land in kanals and marlas, whereas the land sold away by virtue of sale deed Ex.PW7/1 is in bighas and biswas. The plaintiffs have miserably failed to prove that Sheodan sold the land in question, vide sale deeds Ex.P7 and Ex.PW7/1. It was incumbent upon them to bring on record the revenue record prior to 1963-64 (Ex.P12). No sane person would sit silent after having partitioned the land and would not get the mutation sanctioned. The plaintiffs in cross-examination miserably failed to depose the total area of land, in other words, they failed to explain for how much area the suit was filed. Khatoni parmaish-Ex.D3 was in respect of land measuring 109 kanals 17 marlas and khewat referred to were 15, 16, 41 and 43, wherein, Jhandu and Lila son of Ramji Lal were shown to be owners of 1/3rd share and Lila son of Hardayal and Sheodan were also owners of 1/3rd share. Lila son of Hardayal had not been impleaded as party. The sale deeds have also not been proved on record by examining its scribe or bringing on record register of scribe. Concededly, the sale deeds were of bighas and biswas. It is also matter of record that consolidation had taken place in the year 1959-60. As per the instructions, khatoni pamaish is required to maintain old and new killa numbers. The most important fact which would go against the appellant-plaintiff is the statement of Jhandu suffered before the revenue Court regarding the partition of land. The aforementioned statements were withheld from the notice of the Court, much less not pleaded. A person who seeks equity must do equity. In those proceedings, he did not deny the 1/3rd share of Ram Lila son of Hardayal and Sheodan, therefore, he could not claim the right in respect of the property on the 13 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {14} premise that there was incorrect entries. It would be in the fitness of things to refer to para 2 of the partition application filed by Khazani and Misri against plaintiff no.2, corresponding para 14 of the written statement filed by appellants and as well as statement of Jhandu :-
Para 2 of the partition application "2. That the applicants are having 1/3rd share in the agriculture land mentioned above and the respondent Jhandu and others have got 2/3rd share."
Corresponding para 2 of the written statement "2. That para no.2 is correct and admitted.
2(a) That para no.2(a) is not admitted for want of knowledge."
Statement of Jhandu son of Man Singh on oath:-
"Stated that I have got no objection in the partition, but it should be done for the whole land which the applicants have inherited from Sheodhan and the partition of the whole land be done. Area of my agricultural land be completed and whatever is in the margin in the khewat be also corrected. The entries in the revenue record are wrongly entered.
RO&AC Sd/- (English)
Thumb Impression AC Ist Grade, Rewari
LTI Sh. Jhandu 07.12.1978"
The cumulative fact of the aforementioned documents leaves to irresistible conclusion that the appellant-plaintiffs had not come to the Court 14 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {15} with clean hands, though the aforementioned documents were not part of the record of the trial Court, therefore, could not come under the judicial scrutiny but this Court cannot remain oblivious of the fact that the entire story coined in the plaint was based on the false suit.
Since the Hon'ble Supreme Court had remitted the matter back to this Court for without framing the substantial questions of law, I am not agreeing with the contentions of appellants, therefore, in dismissal no questions of law are required to be framed.
No doubt, this Court, on earlier occasions had been framing the substantial questions of law while deciding the appeals but in view of the ratio decidendi culled out by five learned Judges of the Hon'ble Supreme Court in Pankajakshi (dead) through LRs and others Vs. Chandrika and others AIR 2016 SC 1213, wherein the proposition arose as to whether in view of the provisions of Section 97(1) CPC, provisions of Section 41 of the Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed under Section 100 of Code of Civil Procedure and decision thereof could be without framing the substantial questions of law. The Constitutional Bench of Hon'ble Supreme Court held that the decision in Kulwant Kaur and others Vs. Gurdial Singh Mann (dead) by LRs and others 2001(4) SCC 262 on applicability of Section 97(1) of CPC is not a correct law, in essence, the provisions of Section 41 of the Punjab Courts Act, 1918 had been restored back.
For the sake of brevity, the relevant portion of the judgment of five learned Judges of the Hon'ble Supreme Court in Pankajakshi 's case 15 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {16} (supra) reads thus:-
"Since Section 41 of the Punjab Act is expressly in conflict with the amending law, viz., Section 100 as amended, it would be deemed to have been repealed. Thus we have no hesitation to hold that the law declared by the Full Bench of the High Court in the case of Ganpat [AIR 1978 P&H 137 : 80 Punj LR 1 (FB)] cannot be sustained and is thus overruled." [at paras 27 - 29]"
"27. Even the reference to Article 254 of the Constitution was not correctly made by this Court in the said decision. Section 41 of the Punjab Courts Act is of 1918 vintage. Obviously, therefore, it is not a law made by the Legislature of a State after the Constitution of India has come into force. It is a law made by a Provincial Legislature under Section 80A of the Government of India Act, 1915, which law was continued, being a law in force in British India, immediately before the commencement of the Government of India Act, 1935, by Section 292 thereof. In turn, after the Constitution of India came into force and, by Article 395, repealed the Government of India Act, 1935, the Punjab Courts Act was continued being a law in force in the territory of India immediately before the commencement of the Constitution of India by virtue of Article 372(1) of the Constitution of India. This being the case, Article 254 of the Constitution of India would have no application to 16 of 17 ::: Downloaded on - 06-05-2018 14:19:57 ::: RSA No.1747 of 1987 (O&M) {17} such a law for the simple reason that it is not a law made by the Legislature of a State but is an existing law continued by virtue of Article 372 of the Constitution of India. If at all, it is Article 372(1) alone that would apply to such law which is to continue in force until altered or repealed or amended by a competent Legislature or other competent authority. We have already found that since Section 97(1) of the Code of Civil Procedure (Amendment) Act, 1976 has no application to Section 41 of the Punjab Courts Act, it would necessarily continue as a law in force."
Therefore, I do not intend to frame the substantial questions of law while deciding the appeal aforementioned.
As an upshot of my findings, judgments and decrees of the Courts do not suffer from any illegality and perversity, therefore, no ground is made out for interference.
Resultantly, the appeals stand dismissed.
(AMIT RAWAL)
JUDGE
23.04.2018
savita
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
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