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Smt. Hanumakka vs Sri Ramachandrappa on 2 January, 2018

C.R.P.67 Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgments in Suits
(R.P.91)

TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE VIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-15) AT BENGALURU
Dated this the 2nd day of January, 2018
PRESENT:
Sri PATIL NAGALINGANAGOUDA, B.A.,LL.M.,
VIII Additional City Civil and Sessions Judge (CCH-15),
Bengaluru.
ORIGINAL SUIT No.9055/2007

PLAINTIFF : Smt. Hanumakka,
W/o Jangamaiah,
Aged about 51 years,
R/at No.218/207,
Door No.181, Besthara Beedi,
Yelahanka,
Bengaluru – 560 064.
(By Sri DNR, Advocate)
-VERSUS-

DEFENDANTS : 1. Sri Ramachandrappa,
S/o Venkataramanappa,
Aged about 60 years,
2. Smt. Ramarthnamma,
W/o Ramachandrappa,
Aged: 70 years,
Both are residing at No.141,
Besthara Beedi, Yelahanka,
Bengaluru – 560 064.
(By Sri GDA, Advocate for
Defendants 1 and 2)
-2- O.S. No.9055/2007

———————————————————————
Date of Institution of the Suit : 26.11.2007
Nature of the Suit (Suit on : Suit for declaration,
pronote, Suit for declaration permanent injunction
and possession, Suit for injun- and mandatory injunction
ction etc,)
Date of the commencement : 25-08-2016
of recording of the evidence
Date on which the Judgment : 02.01.2018
was pronounced
———————————————————————
Year/s Month/s Day/s
———————————-
Total duration : 10 years, 01 month,06 days.
———————————————————————

(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
An/- Bengaluru.

JUDGMENT

This is a suit filed by the plaintiff against the

defendants 1 and 2 for the relief of declaration to declare

that she is the absolute owner of ‘B’ schedule property

and consequently for permanent injunction to restrain the

defendants or anybody claiming through defendants from

interfering with peaceful possession, enjoyment of the

suit schedule property and to grant mandatory injunction

for demolition of the illegal structure put up in the ‘B’

Cont’d..

-3- O.S. No.9055/2007

schedule property by the defendants and to grant decree

for possession of ‘B’ schedule property.

2. The brief facts of the plaint are as under:

The plaintiff has contended that she is the absolute

owner in possession of house property bearing old Khata

No.188, measuring east to west 32.4 feet and north to

south 42.3 feet situated at Besthara Beedi, Yelahanka,

Bengaluru which is more fully described as schedule

property. It is contended that the plaintiff got portion of

the schedule properties measuring 15 X 20 feet through

gift deed dated 24.8.1961 from her adopted father late

Kondappa. It is contended that after the death of Chinna

Kondappa and his wife i.e., the father and mother of the

plaintiff, the plaintiff succeeded the remaining portion of

the schedule property. Subsequently khata has been

changed in her name and she is residing along with her

husband and children. It is contended that since from

the date of gift deed dated 24.8.1961 and after the death

of Chinna Kondappa the plaintiff is in possession and

Cont’d..

-4- O.S. No.9055/2007

enjoyment of the suit schedule property as an absolute

owner without interference from anybody.

3. It is contended when such being the case, the

defendants having no manner of right, title and interest

over the suit schedule property are trying to interfere

with the plaintiff’s peaceful possession and enjoyment of

the suit schedule property. The defendant being former

President of Yelahanka Municipal Council, pressurized the

plaintiff to sell the suit schedule property, but the plaintiff

refused to sell the said property as she is having only one

schedule property. It is contended that in order to take

revenge against her, on 20.11.2007 and on 22.11.2007,

the defendant along with his henchmen came near the

schedule property, tried to dig trench on the vacant space

in the schedule property. It is contended that the plaintiff

prevented the illegal activities of the defendant, though

the plaintiff has complained to the jurisdictional police,

police advised her to approach the civil court as the

dispute is civil in nature.

Cont’d..

-5- O.S. No.9055/2007

4. It is contended that the plaintiff has obtained the

order from the Court on 29.11.2007. In the meantime,

defendants raised two pillars up to 6 feet and wall up to 9

feet in the vacant space on the northern side of the

residential portion and suit schedule property and

compound all running south to north measuring 20 feet.

It is contended that now vacant possession of the suit

schedule property shown in ‘B’ schedule property.

Whatever unauthorized illegal construction shall be

removed by granting mandatory injunction against the

defendants. With these averments, the plaintiff prayed to

decree the suit.

5. On the other hand, in pursuance of the summons,

the defendant Nos.1 and 2 have appeared through their

counsel and filed their separate written statement.

Though the defendants have filed separate written

statements sum and substance of the written statements

are as under:

Cont’d..

-6- O.S. No.9055/2007

The defendants have contended that the suit of the

plaintiff is false, frivolous and vexatious. The defendant

has denied the plaintiff is in peaceful possession and

enjoyment of the suit schedule property as alleged. It is

contended gift deed dated 24.8.1961 clearly shows the

schedule property was not gifted to the plaintiff as

referred in the plaint in fact, the plaintiff is falsely

claiming right over the suit schedule property. The

defendant contended late Kondappa has other two

brothers viz., Bangeppa and Chinnappa and they did not

had any issues amongst them. It is contended that the

rough sketch denoting the schedule property along with

adjoining schedule property is produced before this Court.

The defendant’s brother’s wife is the owner of the

property shown in the green colour i.e., the property

bearing No.216/206/1. The property lying on the south

of the property is in the name of defendant’s wife

Ramalakshmamma. She purchased the same under

registered sale deed dated 24.4.1997. It is contended

that the property adjoining the suit property is shown in

Cont’d..

-7- O.S. No.9055/2007

the black colour lying on the southern side was also

purchased by defendant’s wife Ramalakshmamma from

Y.P. Narasimhaiah under the registered sale deed dated

29.7.2000. It is contended that Y.P. Nanjappa and Y.P.

Narasimhaiah are brothers. Two portions of them

comprised in the sale deeds therein have been in

possession and enjoyment of the defendant’s wife i.e.,

the defendant No.2. It is contended that the portion

shown in the white colour in the said sketch was

purchased by the defendants from Mohammad Tippusab

on 3.10.1994. The three portions shown in different

colours measuring totally east to west 23.6 feet, north to

south, eastern side 18 feet, north to south, western side

19 feet. It is contended that the possession and

enjoyment has been shown by the defendants based on

the construction of the compound wall long back to the

property shown in the rough sketch.

6. It is contended that the donor shown in the gift

deed namely Kondappa was not at all in possession and

Cont’d..

-8- O.S. No.9055/2007

enjoyment of the schedule property. The CMC records do

not show his ownership of the schedule property as

shown by the plaintiff. The plaintiff claims east to west

32.5 feet and north to south 42.5 feet and there is no

document produced by the plaintiff showing property of

the above said measurement was in possession and

enjoyment of Kondappa who alleged to have been gifted

the property to the plaintiff. It is contended that though

in the gift deed the recitals shows the property gifted

measured east to west 20 feet, north to south 10 feet,

but the plaintiff has filed the present suit for a

measurement of east to west 32.4 feet, north to south

42.3 feet and thus the plaintiff cannot be in possession of

the extent shown in the schedule based on the gift deed

alleged to have been executed by Kondappa. It is

contended that the plaintiff misguided the court by

showing wrong measurement therefore, the plaintiff is

not entitled for the relief sought. Lastly, the defendants

contended that after obtaining the plan they constructed

building in the property and the same is standing in the

Cont’d..

-9- O.S. No.9055/2007

name of the defendant No.2. With this submission, the

defendants prayed to dismiss the suit.

7. After amending the plaint, the defendants have filed

additional written statement, sum and substance of the

additional written statement of the defendants are as

under:

8. It is contended that the measurement has been

sought in respect of the prayer and ownership of the suit

schedule property is not tenable either in law or on facts.

It is contended that from the records it is evident that the

plaintiff is not the class-I heir. At the first instance, the

plaintiff has filed the suit claiming property based on gift

deed said to have been executed by Kondappa. Further,

it is contended that the plaintiff has also pleaded that she

was a foster daughter of Kondappa and she is not an

adopted daughter therefore, she cannot claim succession

accordingly. It is contended when plaintiff is not a class-

1 heir of Kondappa, law will not help her to claim that she

became successor of Kondappa. It is contended that the

Cont’d..

– 10 – O.S. No.9055/2007

plaintiff has cleverly said in the amendment at para 3 that

she has succeeded to the remaining portion of the suit

schedule property. In fact, the defendant No.2 has

purchased the said property under various documents

and the defendants are in possession of the said

properties. It is further contended that when the

defendants have established that they are in exclusive

possession of the schedule property, there is nothing left

to claim either for ownership or to contend that she had

been successor to any of the remaining property to the

plaintiff.

9. The defendants further contended amendment

carried out in para 3(A) that now vacant space of the suit

schedule property shown in ‘B’ schedule property and

describing the ‘B’ schedule property shown in the

schedule that it is part of ‘A’ schedule property with the

boundaries is not at all existing. It is contended that in

fact ‘B’ schedule property is the property of these

defendants. It is contended that the defendants have

Cont’d..

– 11 – O.S. No.9055/2007

purchased the same under the registered sale deeds

dated 30.9.1994, 21.4.1997 and 29.7.2000. On the

contrary, the plaintiff at the time of filing the suit

produced the gift deed for having shown the schedule

property measuring 10 X 20 feet, except that there is no

document for showing that any property has been in her

ownership, possession and enjoyment. Lastly, it is

contended in fact the plaintiff in no manner connected to

the family of Kondappa therefore, she has no right to

seek declaration of ownership of the properties in her

favour. With these averments, the defendants have

prayed for dismiss the suit.

10. On the basis of the above averments, this Court has

framed the following issues and additional issues:

1. Whether the plaintiff proves that she is in
lawful possession and enjoyment of suit
schedule property on the date of the suit ?

2. Whether the plaintiff proves the alleged
interference ?

Cont’d..

– 12 – O.S. No.9055/2007

3. Whether the plaintiff is entitled to
permanent injunction sought ?

4. What order or decree ?

Additional issues:

1. Whether plaintiff proves she is absolute
owner of suit schedule property ?

2. Whether plaintiff proves during pendency
suit, defendant has put up illegal structure
in ‘B’ schedule property as alleged ?

3. Whether plaintiff is entitled for relief of
declaration of ownership as sought ?

4. Whether plaintiff is entitled for relief of
mandatory injunction as sought ?

5. Whether plaintiff is entitled for relief of
possession of ‘B’ schedule property ?

11. In order to substantiate the averments of the

plaint, power attorney holder of the plaintiff who is none

other than the son of the plaintiff himself examined as

PW.1 and got documents marked as Exs.P.1 to P.33 and

closed her side. When the case posted for defendant’s

evidence, power attorney holder of the defendants

Cont’d..

– 13 – O.S. No.9055/2007

himself examined as DW.1 and got documents marked as

Exs.D.1 to D.86.

12. I have heard the arguments from both the

sides. At the time of arguments, advocate for the plaintiff

and defendants have relied the rulings.

13. My findings on the above issues are as under:

Issue No.1: Negative;

Issue No.2: Negative;

Issue No.3: Negative;

Issue No.4: As per final order.

Additional issues:

Issue No.1: Negative;

Issue No.2: Negative;

Issue No.3: Negative;

Issue No.4: Negative;

Issue No.5: Negative.

REASONS

14. Issue No.1 and Additional Issue No.1:

At the time of arguments, learned advocate for the

plaintiff vehemently argued that the plaintiff initially filed

the suit for the relief of permanent injunction, but

Cont’d..

– 14 – O.S. No.9055/2007

thereafter the plaintiff got amended the plaint for the

relief of declaration of ownership over the suit schedule

property. He has argued that the plaintiff in order to

prove the lawful possession and ownership over the suit

schedule property, herself examined as PW.1 and she has

produced plenty of records more particularly gift deed

executed by her father, tax paid receipts and receipts

issued by BBMP. It is argued plaintiff has established by

way of gift deed dated 24.8.1961 she became the owner

of the schedule property measuring 15 X 20 feet and

after the death of Chinna Kondappa and his wife, plaintiff

became the owner of remaining portion of the schedule

property. It is argued the present records in respect of

the schedule property are standing in the name of the

plaintiff though the defendants have taken various

contentions, but the defendants have not established the

above said aspects. With this submission, the learned

advocate for the plaintiff prayed to answer the above said

issues in favour of the plaintiff.

Cont’d..

– 15 – O.S. No.9055/2007

15. On the other hand, the advocate for the

defendants has argued that the plaintiff has not at all

established that there exists a house property bearing old

Khata No.188, then No.218/207 and new No.218/1,

207/1 measuring east to west 32.4 feet and north to

south 42.3 feet, at Besthara Beedi, Yelahanka with

specific boundaries. It is argued that the plaintiff has

taken the contention that she is the adopted daughter of

Kondappa. She has not at all produced any piece of

documentary evidence to show she has been adopted by

Kondappa, but performing all the rituals which are

prevailing in the Hindu community. It is argued recitals

of the alleged gift deed shows the measurement of the

property as 15 X 20 feet, but the plaintiff has filed the

present suit showing measurement as 32.4 feet X 42.3

feet. It is argued that since the plaintiff has not

established the existence of the property, and thereafter

since the plaintiff has not established that she is the

adopted daughter of Kondappa, the plaintiff has

miserably failed to prove the above said issues in her

Cont’d..

– 16 – O.S. No.9055/2007

favour. It is argued in fact ‘B’ schedule property is the

property of the defendant and the said property was

purchased by the defendant No.2 by way of different sale

deeds more particularly sale deed dated 30.9.1994,

21.4.1997 and 29.7.2000. It is argued that the plaintiff

has produced gift deed for having given the schedule

property mentioned therein measuring 15 X 20 feet.

Except that there are no documents produced by the

plaintiff to prove the ownership and possession over the

suit schedule property. Further, it is argued in order to

resist the claim of the plaintiff, power of attorney holder

of the defendant himself examined as DW.1 and he has

produced in all 86 documents which are marked as

Exs.D.1 to D.86. With these submissions, the advocate

for the defendant prayed to answer the above said issues

in favour of the defendants.

16. On careful perusal of the oral as well as

documentary evidence, and on the basis of the settled

position of law, this Court is of the opinion that the

Cont’d..

– 17 – O.S. No.9055/2007

plaintiff has failed to prove Issue No.1 and Additional

Issue No.1 in her favour. Admittedly, plaintiff has filed

this suit for relief of declaration to declare ownership over

the suit schedule property. Plaintiff is ascertaining her

right over the suit schedule property i.e., property

bearing No.188, old No.207/195, new No.218/207 Door

No.181 measuring East-West : 32.4 feet and North-South

: 42.3 feet situated at Besthara Beedi with specific

boundaries as described in schedule ‘A’. Plaintiff has also

sought relief of possession over ‘B’ schedule property i.e.,

property bearing above said number measuring East-

West : 15 feet, North-South : 20 feet boundaries shown

as ‘B’ schedule property. Plaintiff has contended she

became owner of the ‘B’ schedule property through gift

deed dated 24-08-1961 executed by her adopted father

late Kondappa. Whether plaintiff proved that she is

adopted daughter or not it is to be discussed little bit

later. Plaintiff further contended she succeeded

remaining portion of the property i.e., ‘A’ schedule

property after death of Kondappa and his wife.

Cont’d..

– 18 – O.S. No.9055/2007

17. In order to ascertain their right over the suit

schedule property, initially plaintiff has to establish ‘A’ and

‘B’ schedule property were standing in the name of

Kondappa and his wife before execution of the alleged

gift deed or before their death. If plaintiff establishes

Kondappa and his wife were owners of the ‘A’ and ‘B’

schedule property, then question arises whether

Kondappa has executed gift deed on 24-08-1961 and

whether plaintiff derived title over the suit schedule

property in respect of the ‘B’ schedule property and

whether plaintiff derived ‘A’ schedule property after death

of Kondappa and his wife. Admittedly, defendant has

totally denied relationship of the plaintiff with Kondappa.

Under such circumstances, plaintiff has to establish her

case by adducing cogent, material and corroborative

evidence.

18. At the time of argument, Advocate for

defendant has vehemently argued and relied the decision

reported in (2014) 2 Supreme Court Cases 269 in a case

Cont’d..

– 19 – O.S. No.9055/2007

Union of India and others -versus- Vasavi Co-operative

Housing Society Limited and others. In the above said

decision, it is held – “In a suit for declaration of title, the

burden always lies on the plaintiff to make out and

establish a clear case for granting such a declaration and

the weakness if any of the case said to be by the

defendants would not be a ground to grant relief to the

plaintiff. Further, it is held the legal position is clear

plaintiff in a suit for declaration of title and possession

could succeed only on the strength of his own title and

could be done only by adducing sufficient evidence to

discharge onus on it, irrespective of the question whether

defendants have proved their case or not.” Further, it is

held – “Even if the title set up by the defendants is found

against them, in the absence of establishment of the

plaintiff’s own title, the plaintiff must be non-suited.”

Keeping in mind of the principles laid down in the above

said decision, if we peruse the pleadings on record

produced by the plaintiff without any hesitation it is to be

held plaintiff has failed to prove above said Issues.

Cont’d..

– 20 – O.S. No.9055/2007

19. Admittedly, plaintiff has not produced any iota

of documents to show Kondappa and his wife were

owners and in possession of the suit ‘A’ and ‘B’ schedule

property. No doubt plaintiff has produced alleged gift

deed which is marked as per Ex.P.29, that itself is not a

ground to establish her alleged adopted father and

mother were in possession and enjoyment of the suit ‘A’

and ‘B’ schedule properties. Plaintiff has produced

Exs.P.2 to P.6 which are the assessment register extracts.

Admittedly, those documents are standing in the name of

the present plaintiff. As I have discussed above, Whether

gift deed relied by the plaintiff is valid under law is point

to be considered little bit later. Contents of Exs.P.1 to P.6

are based on the alleged gift deed which is marked as per

Ex.P.29 and those documents are not sufficient to come

to conclusion earlier property was owned by Kondappa

and his wife. Similarly, Exs.P.7 and P.8 are endorsement

issued by the B.B.M.P. Those documents are also not

helpful to the plaintiff to prove the above said aspect.

Plaintiff has produced tax paid receipts which are marked

Cont’d..

– 21 – O.S. No.9055/2007

as per Exs.P.9 to P.15 which are dated 20-03-1953, 17-

06-1962, 20-10-1955, 18-04-1960, 23-07-1953, 07-09-

1977 and 22-04-1980. No doubt in the above said

document, name is shown as Kondappa, nowhere

property number is mentioned as contended by plaintiff.

It is pertinent to note here that plaintiff has not at all

pleaded how Kondappa derive title over the suit schedule

property before execution of the alleged gift deed.

Plaintiff has not at all pleaded whether said property was

self-acquired property of Kondappa or it was his ancestral

property. Even in this regard, plaintiff has not produced

any iota of document before the Court.

20. Ex.P.16 is copy of the notice issued by the Town

Municipality, Yalahanka. Ex.P.17 is the endorsement

issued by the Yalahanka Town Municipality. Exs.P.18 to

P.27 are the tax paid receipts. Ex.P.28 is the Patta book.

Ex.P.30 is the assessment register extract. Ex.P.31 is

again self-assessment property tax extract. Admittedly,

all the documents are standing in the name of the

Cont’d..

– 22 – O.S. No.9055/2007

plaintiff on the basis of Ex.P.29. In my considered view,

contents of those documents not helpful to the case of

the plaintiff to establish executer of Exs.P.29 i.e.,

Kondappa was owner and in possession of the suit

schedule ‘A’ and ‘B’ properties as on the date of execution

of Ex.P.29.

21. In the cross-examination, P.W.1 being son of

the plaintiff has categorically admitted Kondappa had no

issues and he has not idea in which year wife of

Kondappa died. Though P.W.1 has deposed schedule

property was ancestral property of Kondappa, but he has

not produced any documents in this regard. Even P.W.1

unable to say name of father of Kondappa. Further, he

has admitted he has not at all enquired who are all

ancestors of Kondappa. Though he has deposed he is

having custody of Khata, tax paid receipts which were

standing in the name of Kondappa, but he has not

produced any documents before this Court. These are

the documents of P.W.1 probabilise the case of the

Cont’d..

– 23 – O.S. No.9055/2007

defendant, the property described by the plaintiff in the

plaint is not in existence and neither Kondappa nor his

wife were owner of the suit schedule property. Apart

from this in he cross-examination he has categorically

admitted as under –

“zÁªÁ ¸À°è¸ÀĪÀ PÁ®PÉÌ zÁªÁ¸ÀéwÛ£À SÁvÁ
£ÀA 188 JAzÀÄ £ÀªÀÄÆzÀÄ ªÀiÁrzÉÝãÉ. ¤¦-13gÀ°è
D ¸ÀéwÛ£À ZÀPÀÄ̧A¢, «¹ÛÃtð K£À£ÀÄß §gÉ¢®è
CAzÀgÉ ¤d. ¤¦-13gÀ ¥ÀæPÁgÀ 188 ¸ÀéwÛUÉ
PÉÆAqÀ¥ÀàgÀªÀgÀ ºÉ¸ÀjUÉ SÁvÉ EvÀÄÛ. ¤¦-15gÀ°è
ºÀ¼ÉAiÀÄ £ÀA§gï 151, ¤¦-16gÀ°è ºÀ¼ÉAiÀÄ
£ÀA§gï 151/181 JAzÀÄ §gÉAiÀįÁVzÉ CAzÀgÉ
¤d. £ÀA§gï 151 EzÀÄÝzÀÄÝ 181 ºÉÃUÉ D¬ÄvÀÄ
JAzÀÄ £À£ÀUÉ UÉÆwÛ®è. ¤¦-20gÀ ¥ÀæPÁgÀ ºÀ¼ÉAiÀÄ
£ÀA§gï 181, vÀzÀ£ÀAvÀgÀ 195 DVzÉ JAzÀÄ
§gÉAiÀįÁVzÉ CAzÀgÉ ¤d. 181 EzÀÄÝzÀÄÝ 195
ºÉÃUÉ D¬ÄvÀ £À£ÀUÉ UÉÆwÛ®è . PÀAzÁAiÀÄ PÀlÄÖvÁÛ
§A¢zÉÝêÉ. ¤¦-21 jAzÀ ¤¦-23gÀ°è £ÀA§gï 195
EzÀÄÝzÀÄÝ 207 DVzÉ CAzÀgÉ ¤d. CzÉà jÃw ¤¦-

Cont’d..

– 24 – O.S. No.9055/2007

24 jAzÀ 27gÀªÀgÉUÉ £ÀA§gï 207 EzÀÄÝzÀÄÝ 218
DVzÉ JAzÀÄ £ÀªÀÄÆzÀÄ ªÀiÁqÀ¯ÁVzÉ CAzÀgÉ ¤d.

D J¯Áè zÁR®ÉUÀ¼ÀÄ SÁvÁ £ÀA 188PÉÌ
¸ÀA§AzÀs¥ÀnÖzÀÄÝ C®è CAzÀgÉ ¸ÀjAiÀÄ®è. ¤¦-

32gÀ°è SÁ°eÁUÀ-1 JAzÀÄ §gÉAiÀįÁzÀ eÁUÀzÀ
SÁvÁ £ÀA§gï 188.”

22. On perusal of the above said evidence, it clearly

reveals neither plaintiff nor her power of attorney holder

have no idea with regard to change of the number of the

alleged schedule property. When plaintiff has not

produced any relevant records to show Kondappa having

any right over the suit schedule property as on the date

of execution of the gift deed, I am of the opinion that

plaintiff has failed to prove the above said Issue in his

favour.

23. On the other hand, it is the case of the

defendant plaintiff without having any document falsely

claiming that she is adopted daughter of Kondappa after

death of Kondappa and his wife. Defendant has also

Cont’d..

– 25 – O.S. No.9055/2007

contended plaintiff unlawfully claiming ‘B’ schedule

property which belongs to her mother Smt.

Ramalakshmamma i.e., defendant No.2. In fact,

defendant No.2 has purchased the said property under

three different sale deeds. When plaintiff has not

produced any documents as I have discussed above, at

the out set it is to be held plaintiff has not established

that Kondappa was having any right over the suit

schedule property to execute the alleged gift deed as per

Ex.P.29.

24. Now, this Court has to see whether plaintiff has

established that she is adopted daughter of deceased

Kondappa. If she proves that she is adopted daughter of

Kondappa, then question arises whether gift deed

executed by Kondappa is valid under law or not. On

perusal of Ex.P.29 on which plaintiff is ascertaining her

right, it is specifically mentioned as under –

Cont’d..

– 26 – O.S. No.9055/2007

“. . . . . . ¨ÉAUÀ¼ÀÆgÀÄ GvÀÛgÀ vÁ®ÆèPï

AiÀÄ®ºÀAPÀzÀ°ègÀĪÀ UÀAUÀªÀÄvÀ¸ÀÜgÀ UÀÆ£À¥À࣪
À ÀgÀ ªÀÄUÀ¼ÀÄ
£À£Àß ¥Á®PÀ ¥ÀÅwæAiÀiÁzÀ ºÀ£ÀĪÀÄPÀÌ£ª
À ÀjUÉ . . . . . .”

Recitals of Ex.P.29 did not disclose plaintiff is adopted

daughter of Kondappa. On the other hand, it is shown

Hanumakka is foster daughter of Kondappa. In the

cross-examination, P.W.1 has categorically admitted in

Ex.P.29 father’s name of plaintiff shown as Goonappa.

He has also admitted in Ex.P.29, it is specifically

mentioned her mother is foster daughter of Kondappa.

He has admitted he has not produced any documents to

show that her mother is adopted daughter of Kondappa.

Further, he has admitted he has not produced any

documents to show prior to marriage of her mother,

father name of her mother shown as Kondappa. He has

also admitted division took place when her mother was in

child age by performing all rituals prevailed in their

community. If that being the case, it is not clear why

plaintiff has not adduced evidence of any independent

Cont’d..

                             - 27 -         O.S. No.9055/2007

witnesses who saw the alleged adoption. First and

foremost thing is plaintiff has not established that she is

adopted daughter of Kondappa. When she has not

proved the above said aspect, question of inheritance

over the property belongs to Kondappa does not arise.

25. Now, point for consideration remains whether

foster daughter can claim right of inheritance under the

Hindu Succession Act of a property left behind either by a

male or female who died intestate. This aspect is clearly

discussed by the Hon'ble Apex Court in a decision

reported in 2015 SCC OnLine Mad 1699 in a case

Shakunthala Devi -versus- Chinnaponnu and another. In

the above said decision, it is discussed - "So far as Hindu

Succession Act is concerned, not every member of a

family is entitled for inheritance." In the said decision, it

is discussed - "In the instant case, assuming that the

appellant was brought up by Mr. Iyyaru and Mrs.

Neelatchi Ammal as their foster daughter and assuming

that on that score, she has become a member of Mr.

Cont'd..

- 28 - O.S. No.9055/2007

Iyyaru and Mrs. Neelatchi Ammal family and on that

score, we cannot equate her as a daughter of Mr. Iyyaru

and Mrs. Neelatchi Ammal." When this being the

observation of the Hon'ble Apex Court, this Court is of the

opinion that on the basis of the contents of Ex.P.29, it is

not possible to equate plaintiff as daughter of late

Kondappa and his wife.

26. Advocate for defendant relied another decision

of the Hon'ble Apex Court rendered in Civil Appeal

No.449-450/2006 in a case A.V. Rangacharya (D) by LRS.

-versus- M. Narayanappa and another - wherein Hon'ble

Apex Court discussed the issue as under -

"(1) A foster son is not a legal son at all
in Hindu law because in present Hindu law
there are only two kinds of legal sons,
namely, (i) natural son or Auras Putra, who a
man has through his legally wedded wife and,

(ii) Adopted son or Datak Putra who is
adopted after following certain procedures
given in the Hindu Adoption and Maintenance
Act, 1956."

Cont'd..

- 29 - O.S. No.9055/2007

Further, it is held - "Foster son is not adopted son. He is

only child who is brought up by a man without going

through legal formalities of adoption." In the present

case also, it is not the case of the plaintiff all the legal

formalities have been complied when her adoption took

place, therefore she was legally adopted daughter of

Kondappa. Under such circumstances, this Court is of the

opinion that plaintiff has failed to prove that she is

adopted daughter of Kondappa though in the pleadings

as well as in her oral evidence, plaintiff has contended

she is adopted daughter of Kondappa.

27. At the time of argument, Advocate for

defendant has vehemently argued as per Section 10 of

the Hindu Adoption and Maintenance Act, no person shall

be capable of being taken in adoption unless conditions

are fulfilled. At the time of argument, Advocate for

defendant relied the decision of Hon'ble High Court of

Karnataka rendered in R.F.A. No.2198/2006 in a case H.

Krishnappa -versus- Jayanna Alias Jayappa and others.

Cont'd..

- 30 - O.S. No.9055/2007

In the above said decision, Hon'ble High Court discussed

in detail pertaining to Sections 10 and 11 of the Hindu

Adoption and Maintenance Act. Hon'ble High Court has

also discussed as per Section 11(iv) of the above said Act,

-

"11(iv) the child to be adopted must
be actually given and taken in adoption by
the parents of guardian concerned or under
their authority with intent transfer the child
from the family of its birth (or in a case of
abandoned child or child whose parentage is
not known from the place or family where it
has been brought up) to the family of its
adoption."

Hon'ble High Court further discussed - "It is clear a child

to be adopted has to be given and taken in adoption by

the parents or guardian concerned or under their

authority with intent to transfer the child from the family

of its birth." In the present case, no such thing has

happened. Admittedly, there is no giving and taking

ceremony pleaded by the plaintiff. Admittedly, plaintiff

Cont'd..

- 31 - O.S. No.9055/2007

has not produced any adoption deed alleged to be

executed by deceased Kondappa. Unless plaintiff proves

valid adoption, she cannot claim any right over the suit

schedule property on the ground that she is adopted

daughter of Kondappa.

28. At the time of argument, Advocate for

defendant has also relied another decision reported in

AIR 1968 ORISSA 62 in a case Amara Dei -versus-

Arjuna Dhal. In the above said decision, Hon'ble High

Court of Orissa has given illustration and discussed the

similar facts as under -

"An illustration may make the matter
clear. A Mohammedan driver remains in an
orthodox Hindu family as a servant for over
30 years. The question posed is "is he
entitled to resort to Section 4 of the Act?"

The answer must obviously be in the
negative. The same principle would apply to
the case of a foster daughter who has no
relationship by marriage or blood. Though
apparently it works out injustice in the sense

Cont'd..

- 32 - O.S. No.9055/2007

that a foster daughter, on whom affection
was bestowed ever since from her childhood,
is to be driven out from her hearth and home
after the death of the mother, in principle she
cannot be permitted to resist the plaintiff
invoking the benefits under Section 4 of the
Act."

When this being the position of law, I am of the opinion

that unless and until plaintiff proves she is adopted

daughter of late Kondappa, she cannot claim right over

the suit schedule property.

29. P.W.1 in the cross-examination has categorically

admitted as under -

"¤¦29 zÁ£À¥ÀvÀæ C¹ÛvÀéPÉÌ §AvÀÄ JAzÀÄ
ºÉýzÁUÀ PÉÆAqÀ¥ÀàgÀªÀgÀ ªÀAiÀĸÀÄì JµÀÄÖ EvÀÄÛ
JAzÀgÉ ¸ÀĪÀiÁgÀÄ 70 jAzÀ 80 ªÀµÀð ªÀAiÀĸÁìVvÀÄÛ.
zÁ£À¥ÀvÀæ §gÉzÀÄPÉÆlÖgÀÄ JAzÀÄ ºÉýzÀ PÁ®PÉÌ
£À£Àß vÁ¬ÄAiÀÄ ªÀAiÀĸÀÄì 22 jAzÀ 23 DVvÀÄÛ .
ªÁzÀ¥ÀvÀæzÀ°è §gÉ¢gÀĪÀ £À£Àß vÁ¬ÄAiÀÄ ªÀAiÀĸÀì£ÀÄß
UÀt£ÉUÉ vÉUz
É ÀÄPÉÆAqÀgÉ zÁ£À¥ÀvÀæ C¹ÛvÀéPÉÌ §AvÀÄ

Cont'd..

- 33 - O.S. No.9055/2007

JAzÀÄ ºÉýzÀ 1961£Éà ¸Á°UÉ £À£Àß vÁ¬ÄAiÀÄ
ªÀAiÀĸÀÄì PÉêÀ® 5 ªÀµÀð CAzÀgÉ ¤d."

30. Subsequently, P.W.1 has changed his version

and denied as on date of Ex.P.29, his mother was

unmarried. P.W.1 is blowing hot and cold at the same

time. In one breath he is contending his mother was

aged about 5 years as on date of gift deed, in another

breath he is contending his mother was married. He has

admitted -

               "»AzÀÆ               ¸ÀA¥ÀæzÁAiÀÄzÀ°è            zÀvÀÄÛ
¥ÀqÉAiÀĨÉÃPÁzÀgÉ PÉ®ªÀÅ ¤Ãw ¤AiÀĪÀÄ ªÀÄvÀÄÛ
¸ÀA¥ÀæzÁAiÀÄUÀ¼ÀÄ EªÉ CAzÀgÉ ¤d. £À£Àß

vÁ¬ÄAiÀÄ zÀvÀÄÛ ¥ÀQæAiÉÄ £ÀqÉzÁUÀ ºÉÆêÀÄ-ºÀªÀ£À
ºÁUÀÆ EvÀgÉ ¸ÀA¥ÀæzÁAiÀÄUÀ¼ÀÄ £ÀqÉ¢ªÉ. CzÀÄ
AiÀiÁªÁUÀ CAzÀgÉ £À£Àß vÁ¬Ä aPÀ̪ÀjzÁÝUÀ¯ÉÃ
DVvÀÄÛ. CzÀgÀ ªÀµÀð , wAUÀ¼ÀÄ ¢£ÀÁAPÀ UÉÆwÛ®è.
CAvÀºÀ AiÀiÁªÀÅzÉà ¤Ãw ¤AiÀĪÀÄ ¸ÀA¥ÀæzÁAiÀÄ
£ÀqÉzÉà E®è CAzÀgÉ ¸ÀļÀÄî."

Cont'd..

- 34 - O.S. No.9055/2007

These are the admissions of P.W.1 not helpful to the case

of the plaintiff to prove the above said Issues in her

favour.

31. On the other hand, in order to resist the claim

of the plaintiff, power of attorney holder of the defendant

himself examined as D.W.1. In his evidence, he has

specifically deposed recitals of the gift deed reveals

plaintiff is daughter of Goonappa and it is also mentioned

Kondappa had no issues and plaintiff Hanumakka was the

foster daughter of him. D.W.1 further deposed nowhere

it is mentioned plaintiff was the adopted daughter of

Kondappa as claimed by the plaintiff therefore, she does

not acquire any right to succeed the alleged properties of

Kondappa after his death. Further, he has deposed said

Kondappa is son of Rangappa and he had two brothers

by names Bangyappa and Channappa died without

marriage and Bangyappa and his wife died issueless.

Said Kondappa's father Rangappa had three brothers -

elder brother by name Kondappa, younger brothers

Cont'd..

                           - 35 -         O.S. No.9055/2007

Pillanna and Hanumappa. Further, Pillanna and

Hanumappa died without marriage. Elder brother

Kondappa had a son by name Nanjappa and Nanjappa

had two sons by name Pillanna and Kondappa. Further

deposed, said Pillanna had four sons by names Nanjappa,

Narayanaswamy, Narasimhaiah and Ramaiah. Further

deposed Kondappa son of Nanjappa had two sons by

names K. Srinivasamurthy and K. Nagaraja and above

said persons are the family members of Kondappa son of

Rangappa through his paternal relationship. Further, he

has deposed neither plaintiff's father Goonappa nor the

plaintiff are the family members of Kondappa, they have

not related with aforesaid family members. Lastly, he has

deposed when that being the facts, plaintiff illegally

claiming she succeeded to the suit 'A' schedule property

from Kondappa as his adopted daughter and based on

that false relationship, she is claiming ownership over the

'B' schedule property which cannot be permissible under

law. Though D.W.1 cross-examined at length, nothing

has been brought on record to disbelieve his evidence.

Cont'd..

- 36 - O.S. No.9055/2007

In the cross-examination of D.W.1, nothing has been

elicited from his mouth in order to prove initially

Kondappa was the owner and in possession of the suit

schedule property or he was having any right over the

suit schedule property. Even it is not elicited from the

mouth of D.W.1 that plaintiff is adopted daughter of

Kondappa. Under these circumstances, without any

hesitation, it is to be held plaintiff has failed to prove

Issue No.1 and Additional Issue No.1 in her favour.

Hence, my answer to above Issues are in negative.

32. ISSUE No.2 AND ADDITIONAL ISSUE No.2 :

Since plaintiff has failed to prove the above said material

Issues, question of alleged interference of the defendant

over the suit schedule property does not arise. Even

plaintiff has not proved during pendency of the suit

defendants have put up illegal structure in the 'B'

schedule property as alleged. Even for sake of discussion

on perusal of the pleadings oral as well as documentary

evidence, plaintiff has failed to prove above said Issues.

Cont'd..

- 37 - O.S. No.9055/2007

Admittedly, it is an admitted fact initially suit has been

filed by the plaintiff only for the relief of permanent

injunction and during pendency of the suit, relief of

declaration and relief of mandatory injunction got

amended by the plaintiff. By way of amendment, plaintiff

has contended she has filed the suit on 22-11-2007, she

obtained an order on 29-11-2007. It is the case of the

plaintiff in the mean time, defendant raised two pillars up

to six feet and wall up to 9 feet in the vacant space on

the northern side of residential portion and suit schedule

property and compound wall running South to North

measuring 20 feet. It is the case of the plaintiff now

vacant space of the suit schedule property is shown in the

'B' schedule property. Whatever unauthorized illegal

construction shall be removed by granting mandatory

injunction against the defendant. It is pertinent to note

here that except pleadings and oral evidence, no iota of

document produced by the plaintiff with regard to alleged

interference of the defendant over the suit schedule

property. Even plaintiff has not produced any single

Cont'd..

- 38 - O.S. No.9055/2007

document to show during pendency of the suit,

defendants have put up illegal construction over the suit

schedule property. It is not the case of the plaintiff she

has requested the competent authority to survey the

property or to inspect the property to ascertain the

alleged encroachment during pendency of the suit. In

the cross-examination, P.W.1 has specifically admitted

plaintiff has produced rough sketch to show the actual

situation of the suit schedule property. Admittedly,

though plaintiff has produced the said rough sketch for

the reasons best known to the plaintiff has not got

marked the document as Exhibit 'P' series. At the time of

cross-examination of P.W.1, Advocate for defendant

confronted the document i.e., rough sketch which is

marked as per Ex.P.32. In the cross-examination, P.W.1

has admitted in Ex.P.32, the properties of Bangyappa and

Channappa have not shown. Further, in the cross-

examination, he has specifically admitted contents of the

photograph which is marked as per Ex.D.1. He has

further admitted contents of the photo which is marked

Cont'd..

- 39 - O.S. No.9055/2007

as per Ex.D.2. P.W.1 further admitted contents of the

photograph which is marked as per Ex.D.3. He has

specifically admitted pillars depicts in Ex.D.3 were erected

by the defendants. Though in the cross-examination in

page No.25, P.W.1 has deposed compound depicts in

Ex.D.3 is constructed by the defendants in one day, but it

has not been established by the plaintiff. At the cost of

repetition, I would like to say plaintiff has not produced

any iota of documents to prove the alleged interference

of the defendant over the suit schedule property and

defendant has put up illegal construction over the suit

schedule property during pendency of the suit.

33. In order to resist the claim of the plaintiff,

defendant in his evidence has specifically deposed

plaintiff is not owner of the 'A' and 'B' schedule property

as alleged. D.W.1 has further deposed plaintiff claiming

'B' schedule property which belongs to her mother Smt.

Ramalakshmamma. Further deposed her mother

defendant No.2 has purchased suit schedule property

Cont'd..

                          - 40 -      O.S. No.9055/2007

under three different sale deeds. Further, he has

deposed her mother purchased property bearing

Assessment No.206/194/206 measuring East-West : 8½

feet, North-South : 18 feet from Mohammed Tippu Sab

and children Mohammed Jaffar and Mohammed Ameer

under registered sale deed dated 30-09-1994 bounded on

the East by Hussain Bee's property, West by Nanjappa's

property, North by property purchased by Narayanamma

from Tippu Sab and South by Jangammaiah's property.

34. Further, he has deposed his mother has

purchased property bearing old No.188, new Khata

No.207/1/195/1 measuring East-West : 15 feet and

North-South : 9½ feet from Y.P. Nanjappa through

registered sale deed dated 21-04-1997 bounded on East

by Ramakrishna's property, West by road, North by

Narayanamma's property and South by Y.P.

Narayanamma's portion property. Further, he has

deposed her mother had purchased adjacent property

bearing No.207/2, Municipal Assessment No.218:2/207:2

Cont'd..

- 41 - O.S. No.9055/2007

measuring East-West : 15 feet, North-South : 9½ feet

totally measuring 142.5 square feet from Y.P. Nanjappa

through registered sale deed dated 29-07-2000 bounded

on East by Ramalakshmamma's property, West by road,

North by Ramalakshmamma's property and South by

Jangammaiah's property. He has deposed after purchase

of the above said property, Khata pertaining to above

said properties transferred in the name of her mother

defendant No.2 and she is paying regular taxes to the

concerned authority and she is in peaceful possession and

enjoyment of the same. D.W.1 has categorically deposed

very existence of the properties purchased by her mother

under different sale deeds. Evidence of D.W.1 is

supported by documentary evidence which are marked as

per Exs.D.1 to D.86. On careful perusal of the above said

documents, this Court is of the opinion that defendant

has categorically established contents of the written

statement. Though D.W.1 cross-examined at length on

behalf of the plaintiff, though several questions were put

with regard to contents of Exs.D.1 to D.86, plaintiff is not

Cont'd..

- 42 - O.S. No.9055/2007

in a position to prove her case by adducing cogent,

material and corroborative evidence. On perusal of

contents of the documents produced by the defendant, it

discloses vendors of the defendants are the reversionaries

of the family of Bhangyanna. Whether sale deed

obtained by defendant No.2, whether defendant No.2 has

valid title to property purchased by her are not at all

points to be considered by this Court. The question of

consideration is whether plaintiff had derived title over

the suit schedule property on the basis of Ex.P.29. As

discussed while discussing Issue No.1 and Additional

Issue No.1, plaintiff failed to prove the above said aspect.

Even weakness defence of the defendant is not a ground

to grant decree as prayed by the plaintiff.

35. At the time of argument, Advocate for plaintiff

has vehemently argued and relied the decision of the

Hon'ble Apex Court reported in AIR 2008 SUPREME

COURT 2033 in a case Anathula Sudhakar -versus- P.

Buchi Reddy (D) by L.Rs. and others. Relying the above

Cont'd..

- 43 - O.S. No.9055/2007

said decision, Advocate for plaintiff has argued since

there was no issue in respect of validity of the gift deed,

it could not be considered by the Court. In my

considered view, argument advanced by the Advocate for

the plaintiff has no substance at all. Admittedly, there is

a pleading of the plaintiff she is adopted daughter of

Kondappa and she is also claiming ownership right over

the suit schedule property on the basis that she is

adopted daughter of Kondappa. Merely because Issue

has not been framed by this Court is not a ground to

come to conclusion that plaintiff has proved ownership

over the suit schedule property. Initially, plaintiff has to

establish that she is adopted daughter of Kondappa, then

she has to ascertain her right over the suit schedule

property. Hence, with due respect to the decision

referred above, it is not helpful to the case of the plaintiff.

Hence, my answer to above Issues are in negative.

Cont'd..

- 44 - O.S. No.9055/2007

26. ISSUE No.3 AND ADDITIONAL ISSUE NOs.3 TO 5 :

Since plaintiff has failed to prove material Issues,

certainly plaintiff is not entitled for the relief of

declaration of ownership over the suit schedule property,

mandatory injunction in respect of B schedule property

and relief of possession of 'B' schedule property as well as

permanent injunction as sought. Hence, my answer to

above Issues are in negative.

37. ISSUE No.4 : For my reasons and discussion on

the above Issues and Additional Issues, I proceed to pass

the following -

ORDER

Suit filed by the plaintiff against the

defendants is hereby dismissed.

No order as to cost.

Draw decree accordingly,
(Dictated to Judgment Writer, transcribed by him,
revised by me and after corrections, pronounced in open
Court on this the 2nd day of January, 2018.)

(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
krs Bengaluru.

Cont'd..

                                - 45 -         O.S. No.9055/2007

ANNEXURE

Witnesses examined on behalf of the plaintiff:

Examined on:

P.W.1 : Muniyappa 25-08-2016

Documents marked on behalf of the plaintiff:

Ex.P.1: Special power of attorney
Ex.P.2: Document for having paid the tax
Ex.P.3 to 6: Similar documents of Ex.P.2
Ex.P.7: Endorsement dated 2.2.2008
Ex.P.8; Another endorsement dated 13.3.2009
Ex.P.9 to 15: Seven Receipts
Ex.P.16: Copy of notice issued by Yelahanka Municipality
Ex.P.17: Endorsement
Ex.P.18 to 23: Six receipts
Ex.P.24 to 27: Four receipts issued by BBMP
Ex.P.28: Receipt patta book
Ex.P.29: Gift deed dated 24.8.1961
Ex.P.30: Document about details of property tax
Ex.P.31: Tax paid receipt
Ex.P.32: Rough sketch
Ex.P.33: One photo

Witnesses examined on behalf of the defendants:

Examined on:

D.W.1      : M.R. Manjunatha                        14-06-2017

Cont'd..
- 46 - O.S. No.9055/2007

Documents marked on behalf of the defendants:
Exs.D.1 to D.3: Three photos
Ex.D.4: Original registered sale deed
Ex.D.5: Change of khata extract
Ex.D.6 to 12: Tax paid details
Ex.D.13: Tax paid receipt and challan for 2002-03
Ex.D.14: Tax paid receipt and challan for 2003-04
Ex.D.15: Tax paid receipt and challan for 2004-05
Ex.D.16: Tax paid receipt and challan for 2005-06
Ex.D.17: Tax paid receipt and challan for 2006-07
Ex.D.18: Tax paid receipt and challan for 2007-08
Ex.D.19: Original registered sale deed dated 29.7.2000
Ex.D.20: Tax paid receipt
Ex.D.21: Change of khata extract
Ex.D.22 to 27: Details of tax paid receipts
Ex.D.28: Tax paid receipt and challan for 2002-03
Ex.D.29: Tax paid receipt and challan for 2003-04
Ex.D.30: Tax paid receipt and challan for 2004-05
Ex.D.31: Tax paid receipt and challan for 2005-06
Ex.D.32: Tax paid receipt and challan for 2006-07
Ex.D.33: Tax paid receipt and challan for 2007-08
Ex.D.34: Tax paid receipt
Ex.D.35: Tax paid details
Ex.D.36: Original sale deed dated 30.9.1994
Ex.D.37: Change of khata extract
Ex.D.38: Document containing details of houses and vacant sites

Cont'd..

- 47 - O.S. No.9055/2007

Ex.D.39 to 41: Payment of tax documents
Ex.D.42 to 48: Seven tax paid receipt
Ex.D.49: Original sale deed dated 30.9.1994
Ex.D.50: Change of khata extract
Ex.D.51: House and vacant space register.
Exs.D.52: Property tax system register extracts.
to D.54
Exs.D.55: Property tax paid receipts.
to D.61
Ex.D.62: Building licence.

Exs.D.63 Tax paid receipts.

to D.65
Exs.D.67: Photographs.

to D.72
Exs.D.67(a): Negatives of Exs.D.67 to D.72.
to D.72(a)
Ex.D.73 : Application dated 14-01-2008 submitted to B.B.M.P.
Exs.D.74 : Endorsements.

to D.76
Ex.D.77 : General Power of Attorney dated 30-03-2017.
Ex.D.78 : Certified copy of sale deed dated 18-05-1995.
Ex.D.79 : Certified copy of sale deed dated 15-12-1975;
Ex.D.79(a): Typed copy of Ex.D.79.

Ex.D.80 : Certified copy of sale deed dated 16-07-1983;
Ex.D.80(a): Typed copy of Ex.D.80.

Ex.D.81 : Certified copy of sale deed dated 10-07-1978;
Ex.D.81(a): Typed copy of Ex.D.81.

Ex.D.82 : Discharge summary.

Ex.D.83 : Genealogical tree issued by Village Accountant
(subject to objection)

Cont'd..

- 48 - O.S. No.9055/2007

Ex.D.84 : Khata change document.

Ex.D.85 : Extract of building and vacant space register..
Ex.D.86 : Rough sketch.

(PATIL NAGALINGANAGOUDA)
VIII Additional City Civil and Sessions Judge,
krs Bengaluru.

Cont'd..

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