2016 M L D 2050
2016 M L D 2050
[Supreme Court (AJ&K)]
Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J
MUHAMMAD SADIQ---Appellant
Versus
MUHAMMAD RAFIQUE and others---Respondents
Civil Appeal No.124 of 2013, decided on 28th November, 2015.
(On appeal from the judgment and decree of the High Court dated 20.2.2013 in Civil Appeal No.22 of 2007).
Specific Relief Act (I of 1877)---
----S. 42---Civil Procedure Code (V of 1908), S. 12(2)---Suit for declaration---Maintainability---Consent decree---Cancellation of---Suit for declaration for cancellation of compromise decree was filed which was decreed---Contention of defendant was that plaintiffs were to challenge the decree through an application under S. 12(2), C.P.C. rather to file a fresh suit-Validity-Plaintiffs challenged the consent decree and mutation sanctioned thereof on the basis of said decree on the grounds of being illegal, fictitious, based on fraud and inoperative on their rights---Plaintiffs had also challenged the validity of the judgment and decree on the other grounds apart from those mentioned in S.12(2), C.P.C.---Suit for setting aside the judgment and decree was competently filed and defendant had failed to prove the ownership in the land in dispute---Findings recorded by the courts below were based on cogent reasons---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Appeal was dismissed in circumstances.
Mst. Gulzar Begum v. Asif and others 1994 SCR 116 and Abdul Ghani Farooqi v. Chairman, AJ&K Council and 2 others 1999 PLC (C.S.) 1527 ref.
Muhammad Bashir Khan v. Muhammad Sharif and 2 others 2011 SCR 214; Safdar Ali Khan v. Azad Govt. and 2 others 2010 MLD 1980 and Muneer Hussain Shah and others v. Kazim Hussain Shah and others 1999 CLC 828 rel.
Abdul Majeed Mallick for Appellant.
Raja Hassan Akhtar for Respondents.
Date of hearing: 19th October, 2015.
JUDGMENT
RAJA SAEED AKRAM KHAN, J.---The titled appeal, by leave of the Court, has been directed against the judgment and decree passed by the High Court on 20.2.2013, whereby Civil Appeal No.22 of 2007 filed by the appellant, herein, has been dismissed.
2. The facts relevant for the disposal of instant appeal are that the plaintiff-respondents, herein, filed a suit for declaration and cancellation of decree dated 27.1.2000 in the Court of Senior Civil Judge, Bhimber on 7.7.2003. It is alleged that the land bearing khasra No.140/1 measuring 64 kanal is in the ownership and possession of the plaintiff. New numbers of this khasra, i.e., Khasra No.171 measuring 44 kanal, 10 marla and khasra No.29 measuring 19 kanal, 15 marla were created. They prayed that the decree dated 27.1.2000 in respect of the suit is null and void and inoperative on the rights of the plaintiff-respondents, herein. The trial Court framed the necessary issues and the parties were allowed to lead evidence. At the conclusion of the proceedings, the learned Senior Civil Judge, Bhimber vide its judgment and decree dated 31.3.2006, granted the decree in favour of the plaintiff-respondents. Feeling aggrieved from the judgment and decree of the Senior Civil Judge, the defendant-appellant filed an appeal before the District Judge, Bhimber which was dismissed vide judgment and decree dated 20.11.2006. Feeling dissatisfied, the defendant-appellant filed second appeal in the High Court, which also met the same fate vide impugned judgment and decree dated 20.2.2013, hence, this appeal by leave of the Court.
Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the defendant-appellant, submitted that the judgments and decrees passed by the Courts below are based on misinterpretation of law. The learned High Court fell in error of law while recording the finding that the amendment made in Code of Civil Procedure including section 12(2), C.P.C., has not been adapted in Azad Jammu and Kashmir. He submitted that section 12(2), C.P.C., was adapted vide Act, IV of 2003 in Azad Jammu and Kashmir on 5.3.2003, whereas, the suit was filed by the plaintiff-respondents on 7.7.2003, therefore, the findings recorded by the learned High Court are against the true facts. The learned counsel drew the attention of this Court towards different paragraphs and the prayer clause of the plaint filed by the plaintiff-respondents, while arguing that the proper remedy available under law to the plaintiff-respondents, was to challenge the decree through a.a application under section 12(2), C.P.C., rather to file a fresh suit, therefore, the suit filed by the plaintiff-respondents was liable to be dismissed on this sole ground, but this important legal proposition escaped the notice of all the three Courts below. The learned counsel contended that the plaintiff-respondents challenged the judgment and decree. passed by the Civil Judge, Bhimber on 27.1.2000 in favour of Abdul Latif and others and the mutation No.233 which was also sanctioned in their favour. He contended that the plaintiff-respondents challenged the judgment and decree dated 27.1.2000 on 17.7.2003 beyond the prescribed period of limitation but the learned High Court failed to take into account all these aspects of the case while passing the impugned judgment. He has relied upon the cases reported as Mst. Gulzar Begum v. Asif and others [1994 SCR 116] and Abdul Ghani Farooqi v. Chairman, AJ&K Council and 2 others [1999 PLC (C.S.) 1527].
On the other hand, Raja Hassan Akhtar, Advocate, the learned counsel for the plaintiff-respondents, while controverting the arguments addressed by the learned counsel for the defendant-appellant, submitted that there are concurrent findings recorded by all the Courts below which do not require any indulgence by this Court. The learned counsel
referred to paragraph 8 of the plaint while submitting that the judgment and decree was not challenged only on the ground of fraud and misrepresentation, but the same was also challenged on the other grounds apart from those mentioned in section 12(2), C.P.C., therefore, the argument of the learned counsel for the defendant-appellant in this regard, is ill-founded. He submitted that the defendant-appellant admitted the claim of the plaintiff-respondents, therefore, after admitting the same, the defendant-appellant has no locus standi to challenge the judgment and decree passed by the Senior Civil Judge. He further submitted that the defendant-appellant claimed the entitlement of Shamilat Deh land on the basis of sale-deed dated 12.3.1985, whereas, the sale-deed dated 12.3.1985 was challenged by the plaintiff-respondents by filing a pre-emption suit, which was decreed in their favour. The learned counsel lastly argued that the objection regarding filing of fresh suit was never raised before the trial Court as well as the District Judge, therefore, the same cannot be allowed to be raised at this belated stage.
5. We have heard the arguments of both the learned counsel for the parties and also perused the record made available. The first point raised by the learned counsel for the defendant-appellant is that the declaratory suit filed by the plaintiff-respondents for cancellation of compromise decree dated 27.1.2000 was barred by law as they filed the same on the ground of fraud and misrepresentation, whereas, under law, the proper course for cancellation of the same was to file an application under section 12(2), C.P.C. To appreciate this point we have gone through the relevant provision of law, i.e., 12(2), C.P.C. It will be useful to reproduce here the same which reads as under:--
"12. (1)
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
A plain reading of section 12(2), C.P.C., shows that if a person challenges a judgment, decree or order only on the ground of fraud and mis-representation, he shall seek the remedy by filing an application under section 12(2), C.P.C., before the same Court which has passed the final judgment, decree or order and not by filing a separate suit. To ascertain the fact whether the plaintiff-respondents challenged the validity of the judgment and decree dated 27.1.2000 only on the ground of fraud and mis-representation or the other grounds apart from those mentioned in section 12(2), C.P.C. are also taken by the respondents. To resolve the question, we have also examined the contents of the plaint. It will be relevant to reproduce here paragraphs 4, 7, 8 of the plaint:--
After going through the above reproduced paragraphs and the prayer clause of the plaint, it appears that the plaintiff-respondents challenged the consent decree dated 27th January, 2000 and mutation No.233 sanctioned thereof on the strength of this decree, on the ground of being illegal, fictitious, based on fraud and inoperative on the rights of the plaintiff-respondents. The plaintiff-respondents also challenged the validity of the judgment and decree on the other grounds apart from those mentioned in section 12(2), C.P.C., therefore, the suit filed by the plaintiff-respondents was competent. Thus, it can safely be said that the suit for setting aside the judgment and decree dated 27.1.2000 passed by the Civil Judge has competently been filed. The counsel for the plaintiff-respondents has rightly relied upon the judgment reported as Muhammad Bashir Khan v. Muhammad Sharif and 2 others [2011 SCR 214], in which this Court has held as under:-
"8. .....After the promulgation of section 12(2), C.P.C., whether the suit for cancellation of decree is competent or not has to be looked into in the light of section 12(2), C.P.C. Section 12(2), C.P.C., postulates that where a person challenges the validity of a judgment, decree or an order on the basis of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit. If any person challenges a decree on any of these grounds, then he must file an application under section 12(2) of the Code. But when the validity of a judgment, decree or an order is challenged on other grounds apart from those mentioned in section 12(2), C.P.C., then a suit for cancellation of the decree can competently be filed...."
6. The argument of the learned counsel for the defendant-appellant regarding the findings recorded by the learned High Court that at the time of filing of suit on 7.7.2003, the amendments made in the Code of Civil Procedure including section 12(2), C.P.C., were not adapted in Azad Jammu and Kashmir, has substance as section 12(2), C.P.C., was adapted in Azad Jammu and Kashmir vide Act, No. IV of 2003 on 5.3.2003, whereas, the suit was filed on 7.7.2003. Thus, the findings recorded by the learned High Court in this regard are not sustainable in the eye of law as section 12(2), C.P.C., was in field when the suit was filed.
We have concluded hereinabove that the instant suit was not filed only on the grounds mentioned in section 12(2), C.P.C., rather the same was filed apart from other grounds incorporated in section 12(2), C.P.C., therefore, the suit was competently filed. As such the findings recorded by the learned High Court that the amendment brought in Civil Procedure Code including section 12(2), C.P.C., was not adapted in the Azad Jammu and Kashmir shall not affect the fate of the instant case.
7. While attending the merits of the case, it may be stated that the defendant-appellant claimed his entitlement in the Shamilat Deh land on the basis of sale-deed dated 12.3.1985. This sale-deed was challenged by the plaintiff-respondents by filing a pre-emption suit which was decreed in favour of the plaintiff-respondents, therefore, there remains no more share of the defendant-appellant in the Shamilat Deh land. In this regard, he relied upon two sale-deeds, but, admittedly, the same were not made part of the record or tendered in evidence, therefore, the same cannot be considered. Moreover, the statement of one of the defendants, Muhammad Sadiq son of Din Muhammad, reads as under:--
After going through the statement of Muhammad Sadiq, it is crystal clear that the defendant-appellant failed to prove the ownership in the land in dispute. The witness has clearly deposed that the consideration amount along with expenses incurred in execution of sale-deed which was later on cancelled in a pre-emption suit filed by the plaintiff-respondents, herein, has been received by him. Thus, the stance of the appellant, herein, to be entitled in the share of Shamilat Deh land is negated by the witness of the defendant-appellant, herein. All the three Courts below have dilated upon the matter in a comprehensive manner, and attended the issues wisely and recorded the findings while assigning cogent reasons. We do not find any misreading or non-reading of evidence which is pre-requisite for interference with the concurrent findings. Reliance in this regard can be placed on a case reported as Safdar Ali Khan v. Azad Govt. and 2 others [2010 MLD 1980], wherein, it has been held that:--
"9……The factual points which are agitated on behalf of appellant have been concurrently resolved by Courts below. This Court has always declined to interfere with the concurrent findings recorded by the subordinate Courts. This principle has consistently been followed. In this regard we find support from the views enunciated in the following authorities."
In the case reported as Muneer Hussain Shah and others v. Kazim Hussain Shah and others [1999 CLC 828], it was observed as under:--
"The High Court also observed that concurrent findings of facts recorded by the Courts below cannot be interfered with, unless some gross illegality, Misreading, non-reading of
evidence or some substantial injustice has been pointed out. This observation made by the High Court too is in consonance with the settled principles of law which is hereby endorsed and approved."
In the light of what has been discussed above, this appeal having no force is hereby dismissed with no order as to costs.
ZC/12/SC(AJ&K) Appeal dismissed.
[Supreme Court (AJ&K)]
Present: Mohammad Azam Khan, C.J. and Raja Saeed Akram Khan, J
MUHAMMAD SADIQ---Appellant
Versus
MUHAMMAD RAFIQUE and others---Respondents
Civil Appeal No.124 of 2013, decided on 28th November, 2015.
(On appeal from the judgment and decree of the High Court dated 20.2.2013 in Civil Appeal No.22 of 2007).
Specific Relief Act (I of 1877)---
----S. 42---Civil Procedure Code (V of 1908), S. 12(2)---Suit for declaration---Maintainability---Consent decree---Cancellation of---Suit for declaration for cancellation of compromise decree was filed which was decreed---Contention of defendant was that plaintiffs were to challenge the decree through an application under S. 12(2), C.P.C. rather to file a fresh suit-Validity-Plaintiffs challenged the consent decree and mutation sanctioned thereof on the basis of said decree on the grounds of being illegal, fictitious, based on fraud and inoperative on their rights---Plaintiffs had also challenged the validity of the judgment and decree on the other grounds apart from those mentioned in S.12(2), C.P.C.---Suit for setting aside the judgment and decree was competently filed and defendant had failed to prove the ownership in the land in dispute---Findings recorded by the courts below were based on cogent reasons---No misreading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the courts below---Appeal was dismissed in circumstances.
Mst. Gulzar Begum v. Asif and others 1994 SCR 116 and Abdul Ghani Farooqi v. Chairman, AJ&K Council and 2 others 1999 PLC (C.S.) 1527 ref.
Muhammad Bashir Khan v. Muhammad Sharif and 2 others 2011 SCR 214; Safdar Ali Khan v. Azad Govt. and 2 others 2010 MLD 1980 and Muneer Hussain Shah and others v. Kazim Hussain Shah and others 1999 CLC 828 rel.
Abdul Majeed Mallick for Appellant.
Raja Hassan Akhtar for Respondents.
Date of hearing: 19th October, 2015.
JUDGMENT
RAJA SAEED AKRAM KHAN, J.---The titled appeal, by leave of the Court, has been directed against the judgment and decree passed by the High Court on 20.2.2013, whereby Civil Appeal No.22 of 2007 filed by the appellant, herein, has been dismissed.
2. The facts relevant for the disposal of instant appeal are that the plaintiff-respondents, herein, filed a suit for declaration and cancellation of decree dated 27.1.2000 in the Court of Senior Civil Judge, Bhimber on 7.7.2003. It is alleged that the land bearing khasra No.140/1 measuring 64 kanal is in the ownership and possession of the plaintiff. New numbers of this khasra, i.e., Khasra No.171 measuring 44 kanal, 10 marla and khasra No.29 measuring 19 kanal, 15 marla were created. They prayed that the decree dated 27.1.2000 in respect of the suit is null and void and inoperative on the rights of the plaintiff-respondents, herein. The trial Court framed the necessary issues and the parties were allowed to lead evidence. At the conclusion of the proceedings, the learned Senior Civil Judge, Bhimber vide its judgment and decree dated 31.3.2006, granted the decree in favour of the plaintiff-respondents. Feeling aggrieved from the judgment and decree of the Senior Civil Judge, the defendant-appellant filed an appeal before the District Judge, Bhimber which was dismissed vide judgment and decree dated 20.11.2006. Feeling dissatisfied, the defendant-appellant filed second appeal in the High Court, which also met the same fate vide impugned judgment and decree dated 20.2.2013, hence, this appeal by leave of the Court.
Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the defendant-appellant, submitted that the judgments and decrees passed by the Courts below are based on misinterpretation of law. The learned High Court fell in error of law while recording the finding that the amendment made in Code of Civil Procedure including section 12(2), C.P.C., has not been adapted in Azad Jammu and Kashmir. He submitted that section 12(2), C.P.C., was adapted vide Act, IV of 2003 in Azad Jammu and Kashmir on 5.3.2003, whereas, the suit was filed by the plaintiff-respondents on 7.7.2003, therefore, the findings recorded by the learned High Court are against the true facts. The learned counsel drew the attention of this Court towards different paragraphs and the prayer clause of the plaint filed by the plaintiff-respondents, while arguing that the proper remedy available under law to the plaintiff-respondents, was to challenge the decree through a.a application under section 12(2), C.P.C., rather to file a fresh suit, therefore, the suit filed by the plaintiff-respondents was liable to be dismissed on this sole ground, but this important legal proposition escaped the notice of all the three Courts below. The learned counsel contended that the plaintiff-respondents challenged the judgment and decree. passed by the Civil Judge, Bhimber on 27.1.2000 in favour of Abdul Latif and others and the mutation No.233 which was also sanctioned in their favour. He contended that the plaintiff-respondents challenged the judgment and decree dated 27.1.2000 on 17.7.2003 beyond the prescribed period of limitation but the learned High Court failed to take into account all these aspects of the case while passing the impugned judgment. He has relied upon the cases reported as Mst. Gulzar Begum v. Asif and others [1994 SCR 116] and Abdul Ghani Farooqi v. Chairman, AJ&K Council and 2 others [1999 PLC (C.S.) 1527].
On the other hand, Raja Hassan Akhtar, Advocate, the learned counsel for the plaintiff-respondents, while controverting the arguments addressed by the learned counsel for the defendant-appellant, submitted that there are concurrent findings recorded by all the Courts below which do not require any indulgence by this Court. The learned counsel
referred to paragraph 8 of the plaint while submitting that the judgment and decree was not challenged only on the ground of fraud and misrepresentation, but the same was also challenged on the other grounds apart from those mentioned in section 12(2), C.P.C., therefore, the argument of the learned counsel for the defendant-appellant in this regard, is ill-founded. He submitted that the defendant-appellant admitted the claim of the plaintiff-respondents, therefore, after admitting the same, the defendant-appellant has no locus standi to challenge the judgment and decree passed by the Senior Civil Judge. He further submitted that the defendant-appellant claimed the entitlement of Shamilat Deh land on the basis of sale-deed dated 12.3.1985, whereas, the sale-deed dated 12.3.1985 was challenged by the plaintiff-respondents by filing a pre-emption suit, which was decreed in their favour. The learned counsel lastly argued that the objection regarding filing of fresh suit was never raised before the trial Court as well as the District Judge, therefore, the same cannot be allowed to be raised at this belated stage.
5. We have heard the arguments of both the learned counsel for the parties and also perused the record made available. The first point raised by the learned counsel for the defendant-appellant is that the declaratory suit filed by the plaintiff-respondents for cancellation of compromise decree dated 27.1.2000 was barred by law as they filed the same on the ground of fraud and misrepresentation, whereas, under law, the proper course for cancellation of the same was to file an application under section 12(2), C.P.C. To appreciate this point we have gone through the relevant provision of law, i.e., 12(2), C.P.C. It will be useful to reproduce here the same which reads as under:--
"12. (1)
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, mis-representation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
A plain reading of section 12(2), C.P.C., shows that if a person challenges a judgment, decree or order only on the ground of fraud and mis-representation, he shall seek the remedy by filing an application under section 12(2), C.P.C., before the same Court which has passed the final judgment, decree or order and not by filing a separate suit. To ascertain the fact whether the plaintiff-respondents challenged the validity of the judgment and decree dated 27.1.2000 only on the ground of fraud and mis-representation or the other grounds apart from those mentioned in section 12(2), C.P.C. are also taken by the respondents. To resolve the question, we have also examined the contents of the plaint. It will be relevant to reproduce here paragraphs 4, 7, 8 of the plaint:--
After going through the above reproduced paragraphs and the prayer clause of the plaint, it appears that the plaintiff-respondents challenged the consent decree dated 27th January, 2000 and mutation No.233 sanctioned thereof on the strength of this decree, on the ground of being illegal, fictitious, based on fraud and inoperative on the rights of the plaintiff-respondents. The plaintiff-respondents also challenged the validity of the judgment and decree on the other grounds apart from those mentioned in section 12(2), C.P.C., therefore, the suit filed by the plaintiff-respondents was competent. Thus, it can safely be said that the suit for setting aside the judgment and decree dated 27.1.2000 passed by the Civil Judge has competently been filed. The counsel for the plaintiff-respondents has rightly relied upon the judgment reported as Muhammad Bashir Khan v. Muhammad Sharif and 2 others [2011 SCR 214], in which this Court has held as under:-
"8. .....After the promulgation of section 12(2), C.P.C., whether the suit for cancellation of decree is competent or not has to be looked into in the light of section 12(2), C.P.C. Section 12(2), C.P.C., postulates that where a person challenges the validity of a judgment, decree or an order on the basis of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit. If any person challenges a decree on any of these grounds, then he must file an application under section 12(2) of the Code. But when the validity of a judgment, decree or an order is challenged on other grounds apart from those mentioned in section 12(2), C.P.C., then a suit for cancellation of the decree can competently be filed...."
6. The argument of the learned counsel for the defendant-appellant regarding the findings recorded by the learned High Court that at the time of filing of suit on 7.7.2003, the amendments made in the Code of Civil Procedure including section 12(2), C.P.C., were not adapted in Azad Jammu and Kashmir, has substance as section 12(2), C.P.C., was adapted in Azad Jammu and Kashmir vide Act, No. IV of 2003 on 5.3.2003, whereas, the suit was filed on 7.7.2003. Thus, the findings recorded by the learned High Court in this regard are not sustainable in the eye of law as section 12(2), C.P.C., was in field when the suit was filed.
We have concluded hereinabove that the instant suit was not filed only on the grounds mentioned in section 12(2), C.P.C., rather the same was filed apart from other grounds incorporated in section 12(2), C.P.C., therefore, the suit was competently filed. As such the findings recorded by the learned High Court that the amendment brought in Civil Procedure Code including section 12(2), C.P.C., was not adapted in the Azad Jammu and Kashmir shall not affect the fate of the instant case.
7. While attending the merits of the case, it may be stated that the defendant-appellant claimed his entitlement in the Shamilat Deh land on the basis of sale-deed dated 12.3.1985. This sale-deed was challenged by the plaintiff-respondents by filing a pre-emption suit which was decreed in favour of the plaintiff-respondents, therefore, there remains no more share of the defendant-appellant in the Shamilat Deh land. In this regard, he relied upon two sale-deeds, but, admittedly, the same were not made part of the record or tendered in evidence, therefore, the same cannot be considered. Moreover, the statement of one of the defendants, Muhammad Sadiq son of Din Muhammad, reads as under:--
After going through the statement of Muhammad Sadiq, it is crystal clear that the defendant-appellant failed to prove the ownership in the land in dispute. The witness has clearly deposed that the consideration amount along with expenses incurred in execution of sale-deed which was later on cancelled in a pre-emption suit filed by the plaintiff-respondents, herein, has been received by him. Thus, the stance of the appellant, herein, to be entitled in the share of Shamilat Deh land is negated by the witness of the defendant-appellant, herein. All the three Courts below have dilated upon the matter in a comprehensive manner, and attended the issues wisely and recorded the findings while assigning cogent reasons. We do not find any misreading or non-reading of evidence which is pre-requisite for interference with the concurrent findings. Reliance in this regard can be placed on a case reported as Safdar Ali Khan v. Azad Govt. and 2 others [2010 MLD 1980], wherein, it has been held that:--
"9……The factual points which are agitated on behalf of appellant have been concurrently resolved by Courts below. This Court has always declined to interfere with the concurrent findings recorded by the subordinate Courts. This principle has consistently been followed. In this regard we find support from the views enunciated in the following authorities."
In the case reported as Muneer Hussain Shah and others v. Kazim Hussain Shah and others [1999 CLC 828], it was observed as under:--
"The High Court also observed that concurrent findings of facts recorded by the Courts below cannot be interfered with, unless some gross illegality, Misreading, non-reading of
evidence or some substantial injustice has been pointed out. This observation made by the High Court too is in consonance with the settled principles of law which is hereby endorsed and approved."
In the light of what has been discussed above, this appeal having no force is hereby dismissed with no order as to costs.
ZC/12/SC(AJ&K) Appeal dismissed.
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