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Petitioner: ILLAHI BUKHSH and another VS Respondent: Mst. MALIHA and others
Court Name: Board of Revenue Judge(s): Muhammad Qasim Lashari Title: ILLAHI BUKHSH and another vs Mst. MALIHA and others Case No.: Revision Petition No,129 of 2002 Date of Judgment:2005-06-23 Reported As: 2007 CLC 1902 Result: Order accordingly
Judgment ORDER ' MUHAMMAD QASIM LASHARI, MEMBER (JUDICIAL)---This application for revision filed on 21-1-2002 as of right under section 164, of the Sindh Land Revenue Act, 1967 impugns the legality of order dated 28-10-2002 passed by the learned Executive District Officer (Revenue), Jacobabad whereby he has set aside the mutations effected on 4-5-2002 on the basis of sale-deeds registered 18 years back. 2.- The facts material for the purpose of this application briefly stated are that Haji Moula Bux Soomro owned City Survey Nos.365, 365-A, 367 of Ward-6, Jacobabad in the following manner:-- City Survey No,(Area in sq. Yards)Ruled Card No. Description 365(994-8) 05495 This C.S. No, was purchased by. K.B. Haji Moula Bux from Rahim Bux and others for Rs,33,000.00 vide registered deed No,225, Vol.169, dated 9-6-1947. It was mutated/entered in the Ruled Card No,05495 vide entry dated 29-5- 1948.
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365-A (199-4) 05496 This C.S. No, was purchased by K.B. Haji Moula 13ux from Rahim Bux and others for Rs .33000.00 vide registered deed No,255, Vol. 169, dated 9-6-1947. It was mutated/entered in the Ruled Card No,05496 vide entry dated 29-5- 1948. 366 (68-1) 05497 This C.S. No, was purchased by K.B. Haji Moula Bux from Rahim Bux by transfer from Settlement Department vide PTD No, 546, dated 21-12-1963. It was mutated/ entered in the Ruled Card No,05497 vide entry dated 3-1-1977. 367 (31-1) 05498 This C.S. No, was purchased by K.B. Haji Moula Bux from Rahim Bux by transfer from Settlement Department vide PTD No, 546, dated 21-12-1963. It was mutated/entered in the Ruled Card No: 05498 vide entry dated 3-1-1977. 3.On 5-6-1982, Haji Moula Bux Soomro, recorded his gift statement in Sindhi language before the Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad wherein he stated that C.S. Nos.365, 365-A, 366, 367 and 348, Ward-6, Jacobabad in his personal property which he has gifted to his three sons namely Ahmed Mian Soomro, Illahi Bux Soomro and Iftikhar Ahmed Soomro in equal shares viz 33-1/3 Paisas each and has handed over the possession to his three sons. He further, stated that he has gifted the C.S. Nos.348, 365, 365-A, 366 and 367 admeasuring 1520-2 sq. Yards on which a bungalow is constructed with the condition that he can revoke the gift at any time for which the donees will not raise any objection. The donees accepted the gift. 4. The gift statement dated 5-6-1982 written in Sindhi language and the relevant Ruled Cards have been perused minutely. 5. Insofar as C.S. Nos.365, 365-A, 366 and 367, they undisputedly were owned by K.B. Haji Moula Bux. But so far C.S. No,348, Ward-6 admeasuring 280-5 sq. Yards (2524-5 sq. Feet) is concerned, it appears that an area of 2040 sq. Feet (226.66 sq. Yards) out of total area of 2524.5 sq. Feet was purchased by Ahmed Mian Soomro by transfer from the Settlement Department vide P.T.D. No,548, dated 21-12-1963 and such mutation dated 3-1-1977 in the Ruled Card No,05477 was effected under City Survey Officer's order dated 3-1-1977 which he passed on the application dated 17-12-1976 of Ahmed Mian Soomro presented through his Manager Mr. Dad Muhammad Mangi. The balance
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area of 485 sq. Feet of C.S. No,348 remained entered in the name of Pribhdas which subsequently, being unallotted/balance urban evacuee (State land), stood transferred to the Provincial Government by virtue of section 3(1) of the Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975. The transfer of this area of C.S. No,348 by K.B. Haji Moula Bux through oral gift (statement dated 5-6-1982) to Ahmed Mian Soomro, Illahi Bux Soomro and Iftikhar Ahmed Soomro appears to be doubtful because of the simple reason that this area of 2040 sq. Feet of C.S. No,348 was owned by Ahmed Mian Soomro and as reported by the City Survey Officer/Mukhtiarkar (Revenue), Jacobabad vide his letter No,CS/206, dated 7-6-2005, no documentary evidence is available on the record to show that this area owned by Ahmed Mian Soomro had ever been transferred to Haji Moula Bux. In.View of the report of City Surveyor and City Survey. Officer, Jacobabad duly endorsed by the District Officer (Revenue), Jacobabad vide his letter No,227, dated 7-6-2005, the following entry dated 6-6-1982 in Ruled Card No,05477, appears to be this is however, subject to further verification by the Executive District Officer (Revenue), Jacobabad to whom the matter seems to have been referred by the District Officer (Revenue) vide his Endorsement No,227, dated 7-6-2000:- - 6-6-1982 By oral gift from K.B. Haji Moula Bux Khan as per statement and City Survey Officer's order dated 5-6-1982. (1) Ahmed Mian son of K.B. Moula Bux. (2) Illahi Bux son of K.B. Moula Bux. (3) Iftikhar Ahmed son of K.B. Moula Bux. (in equal shares). 6. The rest of the entries each dated 6-6-1982 in the Ruled Cards Nos.05495, 05496, 05497, 05498 in respect of oral gift of property bearing C.S. Nos. 6/365, 6/365-A, 6366, 6/367 respectively by K.B. Haji Moula Bux Soomro in favour of his three sons Ahmed Mian Soomro, Illahi Bux Soomro and Iftikhar Ahmed Soomro, are correct. 7. It is evident that the entire C.S. No,348 was evacuee land and its total area was 280.5 sq. Yards (2524.5 sq. Feet). Out.Of this area an area of 2040 sq. Feet (226.66 sq. Yards) was .Purchased by late Ahmed Mian Soomro from the Settlement Department whereas the balance area of 484.5 sq. Feet (53.84 sq. Yards) continued to remain as balance evacuee urban land. 8. On 3-5-2002, Mr. Dad Mangi, Manager Soomro House, Jacobabad came to the office of Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad and submitted application dated 3-5-2002 along with a registered sale-deed bearing Registration No,270 registered at Jacobabad on 30-10- 1984 which was regarding the sale of 1/3rd share of Mr Ahmed Mian Soomro in bungalow and private office bearing City Survey C.S. Nos. 365, 365-A, 366 and 367 total area 1574-1 sq. Yards in favour of Illahi Bux Soomro and Iftikhar Ahmed Soomro. The C.S. No,348 with its entire area of 280-5 sq. Yards (Which included 485 sq. Feet Evacuee State Land) was also mentioned in the registered Sale-deed No,270. 9. The Mukhtiarkar (Revenue) City Survey Officer, Jacobabad forwarded the document viz Registered Sale-deed to his the then City Surveyor, Jacobabad (Mr. Manzoor Hussain Kubar) for its verification. The then City Surveyor did not consider the fact that area of C.S. No,348 entered in the sale-deed was 280.5 sq. Yards (2524.5 sq. Feet) and this area was not tallying with the area owned by Ahmed Mian Soomro and subsequently gifted by Haji Moula Bux (Viz 2040 sq. Feet). He also did not consider that an area of 484.5 sq. Feet of C.S. No,348 which was evacuee State land was also included in the sale-deed which was wrong. The City Surveyor reported vide his note dated 4-5- 2002 written in Sindhi on , the back side (page 2) of the application dated 3-5-2002 that he has verified the document and Mutsarfi (title) is tallying and there is no objection to the effecting of mutation. It appears that the Mukhtiarkar (Revenue)/City himself, and without adopting the legal procedure mutated the property in the Property/Ruled Card on 4-5-2002 in the names of Messrs Illahi Bux Soomro and Iftikhar Ahmed Soomro.
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10. It is a fact that a Revenue Officer cannot declare a registered document as 'void' but at the same time in mutation cases, the purpose of issuing notices (even in the case of registered document), inviting A objections on the document and deciding the objections (if any) in open Katchery by the Mutation Officer, is to enquire into the correctness of the document. In this context I would like to quote the following decision of the Board of Revenue (Punjab) relating to the subject:- - "Entries in registered deed--Scope of enquiry by Revenue Officer had not merely to follow registered deed but had also to enquire into the correctness thereof--No possession of property in question having been transferred, Revenue Officer had acted within law by rejecting mutations." 11. Admittedly in the instant case, the area of C.S. No,348 Ward-6 mentioned in the Ruled Card No,05477 was not tallying with the area . Mentioned in the sale-deed and furthermore, an area of 485 sq. Feet evacuee State land of C.S. No,348 was also included in the sale-deed. In an identical case reported in. PLD 1975 Rev. 53 (Punjab), it was held as Under:-- "The plea taken by the respondents before the lower Courts that the alienation made through a registered deed was bound to be acted upon by the Revenue Officers was also not tenable in this case because the description of the land in the registered deed did not tally with the Revenue Record. The total area of Khata No,22, Khatoni No,214 was 689 Kanals, 4 Marlas and 9/40th share came to 155 Kanals, 2 Marlas while the registered deed mentioned the total area of this Khewat to be 519 Kanals, 8 Marlas and 9/40th share of this land was allegedly transferred to respondents Nos.1 and 2. As the total area of Khewat mentioned in registered deed did not tally with the actual Revenue Record, the implementation of the entries in the registered deed was impossible. If 9/40th share of the total area was taken it was more than the area mentioned in the registered deed and if the area allegedly transferred to respondents Nos.1 and 2 was taken it was less than 9/40th share of the land. As the description of property mentioned in the sale-deed was wrong and could not be implemented in the Revenue Record the remedy of the respondents Nos. 1 and 2, if any lay somewhere else and not before the Revenue Authorities. That was presumably the reason why Mutation No,268 relating to this transaction which was entered on 4-2-1963, was not sanctioned because the Revenue Officers could act upon a registered document if the description of facts given in that document did not appear to be in consonance with the position in the Revenue Record or the position on the ground." 12. The Honourable Supreme Court of Pakistan, in a reported case 1999 SCMR 1245, has held as under:- "The learned counsel further argued that the registered sale-deed, mutation and Revenue Record are admissible in evidence and as the plea of the appellant finds support from, all these documents, therefore, the High Court was not correct in discarding them. He referred to several cases to support his view. Point. This is a sweeping and very wide argument and it is not so that every thing which finds mention in the registered deed or Revenue Record must invariably be accepted without proof of their execution genuineness and authenticity. It is axiomatic principle of law that a registered deed by itself, without proof of the execution and the genuineness of the transaction covered by it, would not confer any right." 13. In this context I would also quote the following decision:-- "Registration of a document in case of dispute about its execution is neither decisive on identity of executant nor precludes inquiry by Court on this point and this fact in issue has got to be proved like any other fact in dispute." Execution of document in a case of dispute would require independent proof despite presumption of correctness as regards. Certificate.
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14. is a plethora of rulings on the point under discussion. It is therefore, obvious that Revenue Officers even in the case of registered document, are competent, to a certain limit, to examine the previous title of the land, area mentioned in the sale-deed which must be tallying with the area mentioned in the record, etc. 15. The upshot of above discussion is that a Revenue Officer/Revenue Court is not competent to declare any registered document as void. But at the same time he/it is not precluded or prevented from refusing, the mutation of "Mutsarfi", which as per definition given by Dr. Nabi Bux Baloch in "Sindhi Lughat" (Dictionary), means title, possession, ownership is not clear. If these are not tallying or there is any discrepancy in between the area mentioned in the registered document and the area mentioned in the Revenue/City Survey Record, etc. On such an eventuality a Revenue Officer/City Survey Officer would be justified in refusing the mutation till such time the documents are rectified through ratification deed or any other mode admissible under the law. It to remind here that an objection has been recorded that the signatures put on the special as well as general power of attorney are not genuine and are forged. This Objection has been recorded by none else but Mst. Maliha who is the daughter of late Ahmed Mian Soomro and she must be acquainted with the signatures/handwriting of her father late Ahmed Mian Soomro that is why she has raised the voice that the signatures on the power of attorney were forged. Wherever such allegations are levelled, the burden of proof that the power of attorney is genuine, is ordinarily shifted to the person who is benefited from such document. 16. Since there was, a discrepenary in the area of C.S. No,348 and title of Haji Moula Bux was also not clear, the Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad, should have conducted proper inquiry and if found correct should have returned the document because no mutation could be made if the area and title of the land is not tallying with the area and title entered in the Record-of- Rights. D However, after such mutation, the final position of the Property/Ruled Cards stood as under:-- C.S. No,6/348 (Area 280-5 sq. Yards) Ruled Card No,05477 Date of entry Mode of acquiring right in the propertyWho acquired right 3-1-1977 By transfer from Settlement Survey vide PTD No,548, dated 21-12-1963 and order dated 3-1-1997.Ahmed Mian son of Haji Moula. Bux Soomro. 6-6-1982 By oral gift from K.B. Haji Moula Bux Khan as per statement and City Survey Officer's order dated 5-6-19824. -- Ahmed Mian son of K.B. Moula Bux 5. Illahi Bux son of K.B. Moula Bux. 6. Iftikhar Ahmed son of K.B. Moula Bux. (in equal shares) 4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000.00 through his attorney K.B. Haji Moula Bux vide RD No, 10270, dated 30-10-1984. Illahi Bux Soomro. 2. Iftikhar Ahmed Soomro. C.S.No,6/348 (Area 994=8 sq. Yards) Ruled Card No,05495
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Dated of entry Mode of acquiring right in the property.Who acquired right 29-5-1948 By purchase for Rs,33,000.00 from Mr. Rahim Bux and others through Registered deed No,255 Vol.169, dated 9-6- 1947.K.B. Haji Maula Bux and K.S. Haji Muhammad Usman Khan Soomro. 6-6-1982 By oral gift from K.B. Haji Moula Rux Khan as per statement and City Survey Officer's order dated 5-6-1982.1. - Ahmed Mian son of K.B. Moula Bux. 2. Illahi Bux son of K.B. Moula Bux. 3. Iftikhar Ahmed son of Moula Bux. (in equal shares) 4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000 vide RD No,1070, dated 30-10-1984.1. Illahi Bux Soomro. 2.Iftikhar Ahmed Soomro. C.S. No,6/ ' 365-A(Area 994-4 sq. Yards) Ruled Card No,05496 Date of entry Mode of acquiring righty in the propertyWho acquired right 29-5-1948 By inheritance 1. Rahim Bux son of Allah Bux 2. Hyder Bux son of Allah Bux 3. Five daughters of Allah Bux.-- 4. One widow 'of Allah Bux. 29-5-1948 By purchase for Rs,33000-- from Mr. Rahim Bux and others vide RD No,255, dated 9-6-1947K.B. Haji Moula Bux K.S. Haji Muhammad
Umer Soomro, 6-6-1982 By oral gift. From K.B. Haji- Moula Bux Khan as per statement and City Survey Officer's order dated 5-6- 1982.1. Ahmed Mian son of K.B. Moula Bux. 2. Illahi Bux son of K.B. Moula Bux. 3. Iftikhar Ahmed son of K.B. Moula Bux. (in equal shares) 4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000.00 vide RD No,1070, dated 30-10-1984 City 1. Survey Officer's Order.1. Illahi Bux Soomro. 2. Iftikhar Ahmed Soomro.
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C.S. No,6/366 (Area 68 sq. Yards) Ruled Card No,05497 Dated of entry Mode of acquiring right in the propertyWho acquired right 3-1-1977 By transfer vide PTD No,546, dated 21-12-1963 from settlement.Haji Moula Bux son of Muhammad Umer Soomro. 6-6-1982 By oral gift from K.B. Haji Moula Bux Khan as per statement and City Survey Officer's order dated 5-6-1982.1. Ahmed Mian son of K.B. Moula Bux. 2. Illahi Bux son of K.B. Moula Bux. 3. Iftikhar Ahmed son of K.B. Moula Bux. (in
equal shares) 4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000.00 vide RD No, 270, dated 30-10-1984.1. Illahi Bux Soomro. 2 Iftikhar Ahmed Soomro. C.S. No,6/367 (Area 31-1 sq. Yards) Ruled Card No, 05498 Date of entry Mode of acquiring right in the propertyWho acquired right 3-1-1977 By transfer PTD No,546, dated 21-12-1963 from settlement.Haji Moula Bux son of Muhammad Umer Soomro. 6-6-1982 By oral gift from K.B. Haji Moula Bux Khan as per statement and City Survey Officer's order dated 5-6-1982.1. Ahmed Mian son of K.B. Moula Bux. 2. Illahi Bux son of K.B. Moula Bux. 3. Iftikhar Ahmed son of K.B. Moula Bux. (in equal shares)
4-5-2002 By purchase of share of Ahmed Mian Soomro for Rs,80,000.00 vide RD No,27, dated 30-10-1984 and City Survey Officer's Order.1. Illahi Bux Soomro. 2. Iftikhar Ahmed Soomro. 17. A property Ruled Card, as envisaged in Rule 9(5) of the Sindh City Survey Rules, 1988, read with section 39(2)(d) of the Sindh Land Revenue Act, 1967 is deemed to be the record-of-rights. Consequently, it is governed by the Sindh Land Revenue Act, 1967. Any subsequent change/mutation in the property ruled card is to be effected in accordance with the provisions of section 42 of the Sindh Land Revenue Act, 1967. For having proper perception, the procedure for making the records laid down in section 42 of the Sindh Land Revenue Act, 1967 read with paras. 148, 151, 152 of the City Survey Manual, is given as under:-- (i) Where a person has acquired any right or interest in holding he shall inform the Mukhtiarkar or the authorized officer appointed by the Board of Revenue, such acquisition within three months thereof.
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(Subsection 3). ' Provided that it shall not be necessary to give the information if the right of interest has been acquired by a registered document. In which case it shall be the duty of the Sub-Registrar concerned to inform the Mukhtiarkar (Revenue) within three months of the registration of the document. (Subsection 3). (ii) The Mukhtiarkar or the 'authorized officer shall forward the information received by him to the incharge of cell created by. The Board of Revenue under subsection (1) and incharge shall on receipt of such information or where he is otherwise satisfied that any acquisition of any right or interest in any holding has taken place, enter that acquisition in the register of mutation. (Subsection 6) In case of property card, no mutation Register is to be kept. Charges will be written neatly against the superseded entry after striking out the later with a single line, so that it remains legible. (Para.151 of the City Survey Manual). (iii) The incharge of the cell or the Mukhtiarkar where there is no - cell aftermaking entry under subsection (6) shall:--- (a) affix a copy of the entry to the, Notice Board of the Taluka Office. (b) Forward a copy of the entry to the Tapedar concerned for affixing it at a conspicuous place in Tapedar's Dero; (c) Intimate, by notice in to all such persons who appear or are believed to be interested in the mutation. (Subsection 7). ' Public notice of mutation is to be given to those persons whose rights are reduced and their friends in the prescribed form. (Para. 152 of the City Survey Manual) ' Any person aggrieved by the entry made under subsection (6) may file objections against such entry with the incharge of the cell or with the Mukhtiarkar where there is no cell within fifteen days of the service of the notice under subsection 7 (subsection-8). (iv) The objections, if any, received under subsection (8) shall be entered in separate register hereinafter to be called the register of disputed cases. (Subsection-9) ' Instead of a register of disputes it will suffice to write "disputed" against entries in this list and in the notices of mutations, as well as in the R.P. (Para 151 of the City Survey Manual) (v) The objections entered in the register of disputed cases shall be disposed by the Mukhtiarkar or such other officer authorized by the Board of Revenue in this behalf in open Katchery to be held in the concerned Tapa and all parties. ' Interested in the objections shall be given notice of not less than a week regarding the date and place of the Katchery and the orders made with regard to disposal of the objections shall be entered in the register of mutation. (Subsection 10). (iv) In 'proceedings under subsection (10) of section 42, a, record of the statements of parties and witnesses shall be made by the Revenue Officer with his own hand, and his order shall state briefly the persons examined by him, the facts to which they deposed and the grounds of the order. (Rule 9 of the Sindh Land Revenue Rules, 1968). Explanation.-- Where the acquisition of the right is by a registered deed or by or under the order or decree of a Court, it shall not be necessary to record the statements of the parties, and witnesses or to enforce their attendance. (Rule 9 of the Sindh Land Revenue Rules, 1968)
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(viii) The incharge of the cell or the Mukhtiarkar where there is no - cell shall, after the expiry of the period for filing objections, if no objections- are filed, or within ten days of the order under subsection (10) make necessary correction in the copy of the record of rights in his custody and direct in writing the supervising Tapedar to have similar corrections made in the copies of the record of rights in the custody of council concerned and the Tapedar within fifteen days of the receipt of the directions. (Subsection 12). (ix) The corrections under sub-rule (12) shall be attested: (i) By the Mukhtiarkar if the correction is made by the incharge of the cell; (ii) By a Revenue Officer not below the rank of Assistant Mukhtiarkar in other cases. (Subsection 13). (x) When a mutation is decided by a Revenue Officer a gist of the order, shall be sent, in Form XVIII to the Secretary of the Union Committee, Town; Committee or the Union Council, as the case may be, in which the Deh is situated, and to the person whose right has been transferred. (Rule 32 of the Sindh Land Revenue Rules, 1968). 18. In cities where there is City Survey, it is understood that for the words "Mukhtiarkar (Revenue)" wherever used in section 42 of the Sindh Land Revenue Act, 1967, the words "City Survey Officer" are to be read. 19. The Mukhtiarkar (Revenue)/City Survey Officer, Jacobabad as admitted by him in his statement recorded before me on 14-2-2004, neither issued notices nor invited objections .It is quite obvious and amply clear that the aforesaid mutations in the Property/Ruled Cards were not made in accordance with the stringent procedure laid down in section 42 of the Sindh Land Revenue Act, 1967, read with paras. 148, 151, 152 of the City Survey Manual and Rule 9 of the Sindh Land Revenue Rules, 1968, rather it were made in utter disregard and Violation of statutory provisions. It would be seen that every duty enjoined upon Revenue officials/officers under section 42 of the Act, 1967, has been prefaced with the word 'shall' which leads one to an inevitable conclusion that the procedure for entering and attesting a mutation, is mandatory and deviation from it would entail serious consequence which may amount in nullifying the whole exercise. The word 'shall' has a peremptory meaning and signifies that procedure laid down in section 42 is imperative and mandatory. There is a famous maxim 'A communi observatia non est recedendum' which means that where a thing is provided to be done in particular manner; it has to be done in that manner and if not so done same would not be lawful. It is well recognized rule of construction that where a power is given to do a certain thing in any certain way that thing must be done in that way or not at all. Any Other method of performance is necessarily forbidden PLD 2000 Lah. 262, etc. Relied upon. Under such circumstances where a mutation is not made in accordance with the laid- down procedure, the superior Courts have held as under:- (i) 1993 SCMR 618-- When mutation is not legal and proper; the entire structure built on it shall crumble (p.630)1. (ii) NLR 1995 Revenue 26-- Procedure entering and attesting a mutation is mandatory. Any deviation from it would nullify whole mutation exercise (p.32, 33). 20. In view of the legal position explained supra if notices are not issued to the concerned parties and they are not heard, the mutations effected or any appellate or revisional order passed in…
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