Citation : 2022 Latest Caselaw 4565 Chatt
Judgement Date : 19 July, 2022
Page 1 of 15
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
SA No. 99 of 2017
Reserved on : 09.05.2022
Delivered on : 19.07.2022
Parmesh Miri, S/o Churavan Miri, Aged About 50 Years, Caste-
Satnami, R/o Village- Karhi, Tahsil & Thana- Mungeli, District- Mungeli
(C.G.)
---- Appellant
Versus
Smt. Kumari Bai, Wd/o Late Kalicharan, Aged About 57 Years, Caste-
Satnami, R/o Village- Karhi, Tahsil & Thana- Mungeli, District- Mungeli
(C.G.)
---- Respondents
For Appellant : Mr. N.K. Malaviya, Advocate.
For Respondent : Mr. Pallav Mishra, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. JUDGMENT
1. Heard on admission.
2. This second appeal has been filed by the appellant/defendant under Section 100 of the C.P.C. against judgment and decree dated 18.01.2017 passed by Additional District Judge, Mungeli, District- Mungeli (C.G.) in Civil Appeal No. 01-A/2015 (Parmesh Miri Vs. Smt. Kumaribai), affirming the judgment and decree dated 06.01.2015 passed by Second Civil Judge Class-I, Mungeli, District- Mungeli (C.G.) in Civil Suit No. S 90A/2014.
3. For the sake of convenience, the parties shall be referred to in terms of their status in Civil Suit No. S 90A/2014 which was filed before the trial Court for eviction of defendant, possession of the suit property and for recovery of arrears of rent.
4. The brief facts, as reflected from the plaint averments, are that the plaintiff has filed the civil suit mainly contending that the plaintiff is title holder of the house i.e. suit property situated at
Karhi, Tahsil- Mungeli, District- Bilaspur mentioned in Schedule- A of the plaint. The house has been given to the defendant on rent of Rs. 500/- per month from 10.08.2010. Since the plaintiff and defendants belong to same family having good relation, therefore, they have not made any document and as per the oral agreement, the tenancy starts from 10th day of every month and expires on 9th day of next month. The defendant has paid rent to the plaintiff for six months and thereafter, he stopped to pay the rent. The plaintiff is widow lady, therefore, considering her incapability, the defendant is not giving rent. It has been further contended that the plaintiff has bonafidely required house, therefore, she asked the defendant to give vacant possession of the house as well as for arrears of rent, but he refused to give vacant possession, as such, the plaintiff has given notice through her counsel, which was received by the defendant on 02.09.2011, still he has neither given vacant possession nor paid the rent till date and since then, he has occupied the house as encroacher. It has been further contended that the plaintiff is entitled to get vacant possession of the suit house and rent of seven months from 15.02.2011 to 15.09.2011 @ Rs. 500/- per month i.e. total Rs. 3500/- and damages of Rs. 100/- from 15.09.2011.
5. The defendant has filed reply denying the allegation made in the plaint mainly contending that the plaintiff is not title holder of the suit house mentioned in Schedule-A of the plaint. He has denied that he has taken the house on rent from the plaintiff from 10.08.2010 @ Rs. 500/- per month. He has also denied that the tenancy was orally done. He has also denied that the tenancy starts on 10th day of every month and expired on 9 th day of next month. He has denied that he has paid rent to the plaintiff and stopped to pay the rent after six months. He has also denied that the house is bonafidely required to the plaintiff. He has also denied that the plaintiff has requested orally for giving vacant possession and also to give arrears of rent. He has denied that
the plaintiff has sent legal notice for terminating the tenancy from 14.09.2011, which has been received by him on 02.09.2011. He has denied that he is residing in the suit house mentioned at Schedule-A of the plaint as encroacher. He has stated that the suit house has been constructed on government land, which was constructed by the plaintiff and defendant jointly prior to 10- 15 years incurring the expenses equally. The defendant being joint holder of the property has occupied one room in which, he is residing along with his family and the house constructed West side of the property has been given on rent to one Sonwani who is teacher. The plaintiff and her son have occupied two rooms and the defendant has never resided in the suit house as tenant.
6. It has been further contended that the plaintiff has made an attempt to evict the defendant for getting illegal possession of the suit property and she has taken illegal action against him. It has been further contended that the suit property does not belong the plaintiff, therefore, the suit filed by the plaintiff deserves to be dismissed. It has also been prayed that as the defendant is residing in the suit property for more than 12 years, therefore, the defendant may be declared as title holder of the suit property.
7. Learned trial Court after pleading of the parties, material placed on record, has framed as many as four issues, which are extracted below:-
(i) Whether the suit property has been given by the plaintiff to the defendant as rent for Rs. 500/- per month?
(ii) Whether defendant has stopped to pay the rent from 15.02.2011?
(iii) Whether the plaintiff is bonafidely required the suit property?
(iv) Relief & cost.
8. The plaintiff to substantiate her case has examined herself as PW-1, Bisouha (PW-2), Bhagiram (PW-3) and exhibited document namely receipt of notice dated 02.09.2011 (Ex. P/1),
notice sent to defendant (Ex. P/2).
9. The plaintiff in her examination-in-chief by way of affidavit has reiterated the facts which have been mentioned in the plaint. She has denied that the suit property is constructed on government land, which she has received through lease granted by the Government, but she has not produced the copy of the lease document. She has also denied that plaintiff and defendant have jointly constructed the house. She has stated that at the time of giving rent, Rs. 500/- per month was settled as rent between the parties and terms for providing water, electricity facilities are not settled with the defendant.
10. Bisouha (PW-2) has examined before the trial Court wherein he has supported case of the plaintiff. He has admitted that no tenancy agreement has been executed between the plaintiff and the defendant before him. He has stated that he is not aware that when the tenancy has started. He has stated that the rent Rs. 500/- was fixed before him in his presence.
11. Bhagiram (PW-3) in his examination-in-chief by way of affidavit has reiterated the facts which have been mentioned in the plaint. He has stated that Kumari Bai has informed about non-payment of rent by the defendant, but the date when she informed the same, is not known to him.
12. The defendant to substantiate his case has examined himself as DW-1 & Koushilya Bai (DW-2). The defendant in his examination-in-chief by way of affidavit has reiterated the stand taken by him in written statement. He has stated that he has incurred 50% of expenditure of construction work and 50% expenditure was incurred by the plaintiff. He has admitted that he has not produced any document before the trial Court in support of his contention. He has also stated that he has not done any proceeding for recording his name. In his cross- examination, he has stated that he has sought information through Right to information Act. He has denied that with regard to question No. 5 raised by him, it has been replied that as per
Gramin Awas Yojna, the Patta was given by the Panchayat, as such, no proceeding for removal of encroachment was done.
13. Learned trial Court after appreciating the evidence, material placed on record has recorded finding that as per Section 106 of the Transfer of Property Act, 1882 (for short "the Act, 1882") without any written contract, the tenancy can be executed and also recorded a finding that as per the evidence of the defendant, it is clear that the suit property belongs to the plaintiff, as such, action for dispossession of encroachment has not been done against the plaintiff. Learned trial Court has also recorded finding that the defendant has not produced any evidence to substantiate the averments made by him with regard to the expenditure incurred by him for construction work. Learned trial Court has recorded finding that as per Section 106 of the Act, 1882, oral deed of tenancy can also be executed and accordingly, issue No. 1 has been decided in favour of the plaintiff. Learned trial Court has also recorded a finding that the house is bonafidely required by the plaintiff on the pretext that defendant in his examination-in-chief at paragraph 13 has admitted that the plaintiff has three sons, therefore, issue No. 2 has been decided in favour of the plaintiff.
14. Learned trial Court after appreciating the evidence, material placed on record decreed the suit filed by the plaintiff and directed the defendant to give vacant possession of the house within two months and also directed to pay arrears of rent from February, 2011 to September, 2011 @ Rs. 500/- per month i.e. total Rs. 3500/-. It has also directed to pay Rs. 700/- per month for damages from 15.09.2011 as compensation. Against the judgment and decree passed by the learned trial Court, the defendant preferred first appeal before First Appellate Court i.e. Additional District Judge, Mungeli, which has been dismissed by recording a finding that as per the Act, 1882, a notice was given and thereafter the tenancy has come to an end. It has also been recorded its finding that there is landlord and tenant relationship
between the plaintiff and the defendant, as such, there is no illegality or perversity in the impugned judgment and decree passed by the learned trial Court and accordingly, dismissed the appeal filed by the defendant.
15. Against the judgment and decree passed by the learned First Appellate Court, the defendant has preferred the instant second appeal before this Court. This Court while hearing the second appeal has granted interim protection in favour of the defendant subject to payment of money part of the decree within a period of two months and on depositing the monthly rent by 15 th of each month.
16. Learned counsel for the defendant has filed an application under Order 41 Rule 27 of the C.P.C. to take additional evidence by way of document contending that from perusal of the document, it is quite vivid that the plaintiff was neither having Bhumiswami rights over the land upon which house is situated and nor could duly prove the same, therefore, the plaintiff does not come under the definition of the landlord as defined under Section 2(b) of the Chhattisgarh Accommodation Control Act, 1961, thus she was not entitled to receive rent from the appellant, therefore, the appellant has rightly pleaded that he is not the plaintiff's tenant he is co-holder of the house built on the land on which the plaintiff is having possession. It has also been contended that the documents annexed with this application are disclosing the fact that the plaintiff is showing that she has purchased the land bearing Khasra No. 265/2 from Ganga Prasad who was occupying the said government land whereas in the present case, dispute is regarding Khasra No. 165/1 and would submit that application be kindly allowed.
17. Learned counsel for the appellant would submit that in the instant appeal substantial question of law is involved as both the courts below have failed to consider the plaintiff's possession over the suit property and title over the suit land in absence of valid documentary proof of Abadi Survery List of Patta. He would
further submit that suit should have been dismissed by the trial Court for non-joinder of necessary party. He would further submit that the learned trial Court has committed illegality in holding that the plaintiff is landlord as per provisions of the Act, 1882, without any cogent evidence with regard to relationship between plaintiff and defendant.
18. On the other hand, learned counsel for the respondent/plaintiff would submit that as per Section 106 of the Act, 1882, the oral tenancy can be executed and the defendant has failed to produce any document to substantiate his pleading and submit that the finding recorded by both the Courts below is just and proper and would pray for dismissal of the instant appeal as well as application filed under Section 41 Rule 27 of C.P.C. by the defendant/appellant.
19. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction.
20. From bare perusal of the document annexed with the application for taking additional evidence on record by way of document, it is evident that the appellant is making an effort to present new case without any foundation led in the pleading made before the trial Court. It is also crystal clear that the documents are not at all relevant for deciding the lis between the parties, as such, application under Order 41 Rule 27 of C.P.C. deserves to be dismissed, accordingly, it is dismissed.
21. For better understanding, it is necessary for this Court to extract Section 105 & 106 of the Act, 1882, which are as under:-
"105. Lease defined.- A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.- The transferor is called the lessor, the transferee is
called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
106. Duration of certain leases in absence of written contract or local usage- (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
22. Learned counsel for the appellant would submit that before termination of tenancy, 15 days clear notice has not been given, as such, in view of Section 106 of the Act, 1882, the institution of the suit, is illegal and deserves to be dismissed by this Court. He would further submit that Hon'ble Supreme Court in Biswanath Agarwalla Vs. Sabitri Bera & others 1, has held that the judgment and decree passed by the learned trial Court and affirmed by the First Appellate Court deserves to be set aside. He would refer to paragraphs 23 & 24 of the judgment, which are extracted below:-
"23. Mr. Gupta would further rely upon a decision of
1 (2009) 15 SCC 693
the Calcutta High Court in Hajee Golam Hossain Ostagar vs. Sheik Abu Bakkar [AIR 1936 Calcutta 351] to contend that the defendant in a suit for ejectment was bound to show that he had a right to remain on a land permanently wherefor the onus would be on him. That case related to a agricultural tenancy.
24. A simple tenancy can be terminated by service of notice under Section 106 of the Transfer of Property Act. Once a valid notice is served, the tenant becomes trespasser. The situation, however, has undergone a sea change after almost all the States have enacted the premises tenancy Acts governing the conditions of tenancy in respect of house premises. The State of West Bengal has also enacted the West Bengal Premises Tenancy Act, 1956. In terms of the 1956 Act, the tenant upon termination of tenancy does not become a trespasser. He becomes a statutory tenant (loosely called)."
23. He would submit that the issue with regard to the tenancy has not been made and Hon'ble the Supreme Court in Biswanath Agarwalla (Supra), has remanded the matter directing the trial Court to frame issue on the question of tenancy. The fact of present case is similar to the case of Biswanath Agarwalla (Supra) and would pray for remand of the suit after framing issues.
24. On the other hand, learned counsel for plaintiff would submit that the learned trial Court has already framed issue with regard to the tenancy as issue No. 1 & 2, thereafter decided the case. The parties have led evidence to substantiate their pleadings, which have been examined, thereafter, the judgment and decree has been passed, therefore, there is no occasion for this Court to remand the matter.
25. Now coming to the present facts of case, it is quite vivid that the learned trial Court has framed the issue with regard to tenancy and thereafter decided the matter. The plaintiff and defendant were aware about the facts of their cases and they have examined themselves, therefore, the defendant now cannot say that no issue with regard to tenancy has been framed, therefore, the submission made by learned counsel for the defendant
deserves to be rejected.
26. Learned counsel for the defendant made another submission that 15 days clear notice before institution of suit, has not been given, therefore, the suit is not maintainable, deserves to be negative in view of the judgment passed by Hon'ble the Supreme Court in Sevoke Properties Limited Vs. West Bengal State Electricity Distribution Company Limited 2, wherein it has been held in paragraphs 9.4 & 10 to 17 as under:-
"9.4. The failure of the appellant to issue a notice of termination under Section 106 was fatal to the maintainability of the suit. In this regard, reliance was placed on a decision of a two judge Bench of this Court in Satish Chand Makhan v Govardhan Das Byas [(1984) 1 SCC 369 13].
10. Section 107 of the TP Act reads thus:
"107. Leases how made.--A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession." Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:
Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."
11. In terms of the provisions of Section 107, a lease of immovable property for a term exceeding one year can only be made by a registered instrument. Admittedly, in the present case, the indenture of lease has not been registered. In consequence, the contents of the indenture would 2 (2020) 11 SCC 782
be inadmissible in evidence for the purpose of determining the terms of the contract between the parties. This is the plain consequence of the provisions of Sections 17 and 49 of the Registration Act 1908 6. The only purpose for which the lease can be looked at is for assessing the nature and character of the possession of the respondent.
12. The essence of the dispute in the present case is as to whether a notice of termination under Section 106 was necessary. In the judgment of this Court in Satish Chand Makhan (supra), the father of the plaintiff had leased open land to the defendant for a period of five years under a registered deed of lease. After the expiry of the initial term, there was a draft agreement for renewal for a further period of nine years, which, however, was not registered under Section 17(1)(d) of the Registration Act 1908. The plaintiff served a notice for the determination of the tenancy on the ground of forfeiture under Section 111(g) and brought a suit for ejectment. The High Court held that the lease had been determined by efflux of time under Section 111(a) upon the expiry of the term of nine years and hence, no notice under Section 106 was required for the determination of the lease. While determining the correctness of the judgment of the High Court, this Court observed that "the defendants have nowhere admitted that the lease was for a specific term of nine years". On the contrary, the defendants had pleaded that they were tenants holding over under Section 116 of the TP Act. This Court held that the unregistered draft lease agreement was inadmissible in evidence under Section 49 of the Registration Act except for a collateral purpose of proving the nature and character of the possession of the defendants. The terms of the lease did not constitute a collateral purpose. Consequently, the unregistered draft lease was held to be inadmissible to create a valid lease for a renewed term of nine years. In this background, this Court held that the defendants were tenants holding over under Section 116 in which event it was necessary for the plaintiff to serve a notice under Section 106. In the absence of such a notice, the suit, it was held, would not be maintainable.
13. Mr. Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram.
In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section
106.
14. In coming to this conclusion, we are fortified by the decision of this Court in R V Bhupal Prasad v State of A P [(1995) 5 SCC 698], where this Court held:
"8.Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has 7 (1995) 5 SCC 698 been determined, without the consent of the person
entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression "holding over" is used in the sense of retaining possession."
15. In Park Street Properties Private Limited v Dipak Kumar Singh [(2016)9 SCC 268: (2016) 4SCC (Civ)418], the appellant to whom premises had been let out with a right to sub-let them entered into a sub-tenancy in favour of the respondent. The agreement by which the sub-tenancy was created was unregistered. The appellant issued a notice under Section 106 of the TP Act terminating the monthly sub-tenancy and then instituted a suit for recovery of possession. The trial court held that since the sub-lease was unregistered, it was inadmissible in evidence and none of its terms, including clause 6 which empowered the landlord to serve a notice upon default in the payment of rent could be looked into. Hence the notice under Section 106 was held to be valid. The High Court allowed the appeal and remanded the proceedings to the trial court. In appeal, this Court held that clause 6 of the agreement was contrary to Section
106. While Section 106 contains the phrase "in the absence of a contract to the contrary", this must refer to a valid contract. This Court held that in the absence of a registered agreement, the court is not precluded from determining the factum of tenancy from other evidence on the record including the conduct of parties. However, in the absence of registration, Section 106 created a fiction of tenancy from month to month, the termination of which was governed by Section 106. Consequently, the judgment of the High Court was set aside and the judgment of the trial court was restored. The above judgment is clearly distinguishable. Since the agreement of sub- 8 (2016) 9 SCC 268 lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and
proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance.
16. In Nopany Investments (P) Ltd v Santokh Singh (HUF) [(2008) 2 SCC 728: (2008) 1 SCC (Civ) 721], a two judge Bench of this Court has held :
"22...In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant."
17. For the above reasons, we have come to the conclusion that the judgment of the High Court was in error."
27. Thus, the finding recorded by the learned trial Court affirmed by the First Appellate Court regarding tenancy and filing of the suit even without waiting for 15 days after issuance of notice, is purely finding of facts based upon the evidence brought on record, which is neither perverse nor contrary to the law, as such, there is no infirmity in the judgment and decree passed by the Courts below, which warrants for interference by this Court.
28. Upon perusal of entire evidence, there is no substantial question of law requiring to be formulated for hearing of this second appeal as there is concurrent finding of fact with regard to tenancy between the plaintiff and defendant and termination of tenancy by plaintiff by issuance of notice. As such, no question of law requires to be determined by this Court. Hon'ble the Supreme Court in C. Doddanarayana Reddy (Dead) by Lrs. & others Vs. C. Jayarama Reddy (dead) by Lrs.& others 3, has held at paragraph 28 as under:-
"28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"When any concurrent finding of fact is
3 (2020) 4 SCC 659
assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."
29. This court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the C.P.C. Learned counsel appearing for the appellant failed to point out any substantial question of law which may arise for determination in the case.
30. In view of above, since no substantial question of law arises for determination in the instant case, this is not a fit case for admission. Consequently, the appeal is dismissed at motion stage itself under the provisions of Order 41 Rule 11 read with Order 42 Rule 1 of CPC. No order as to costs.
31. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge
Arun
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