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Hindu Succession Act, 1956-Section 8-Punjab Limitation (Custom) Act, 1920-Entry 2(b) to the Schedule-Widow, on inheriting suit properties of her husband, gifted the same to appellant by a gift deed-Civil Court, in the suit filed by reversioners, holding that the gift by the widow would not affect reversionary rights-Presuming the death of the widow on ground that she was not heard of for more than 7 years, reversioners filing a suit for possession and permanent injunction for restraining the appellant from alienating the suit properties-Appellant contesting the suit on the ground that the gift deed in his favour was valid; and that the suit is barred by limitation-Trial Court allowing the suit-First and second appeals of the appellant before appellate court and High Court were dismissed-Correctness of-Held, the reversioners rightly claimed title to suit properties by inheritance since judgment and decree passed by Civil Court in earlier suit has attained finality and thus the limitation under the customary law has no applicability. Limitation Act, 1963-Section 3 and Article 65-Held, since the appellant have not raised any plea of adverse possession, the suit for possession by the reversioners on the basis of inheritance is not barred by limitation. Evidence Act, 1872-Sections 107 and 108-Held, the presumption of death of the widow not having been heard for 7 years and above is not a ground to presume that the widow died seven years ago prior to the institution of the suit. A widow, who inherited suit properties on the death of the original owner, gifted them to appellant by a gift deed prior to 1956. Reversioners filed a suit before a trial court challenging the legality of the gift deed contending that the widow had only a limited life interest in the suit properties. The Civil Court decreed the suit holding that the gift deed will not affect the reversionary rights after the death of the widow. Plaintiff-respondents, who are reversioners, filed a suit before trial court for possession and permanent injunction for restraining the appellant-defendant from alienating the suit properties on the basis of the reversionary rights granted by the Civil Court in the earlier suit. The respondents filed the suit presuming the death of the widow on the ground that she was not heard of for 7 years prior thereto by them and by others. The appellant contested the suit contending that the widow was the absolute owner of the suit properties and that she made a valid gift in his favour through a gift deed. The appellant further pleaded that the suit was time-barred. The trial court decreed the suit holding that the respondents are the owners of the suit properties on the basis of the declaratory decree of the Civil Court in the earlier suit; that since there was no cogent evidence of the date of the death of the widow, she was presumed to have died for more than 7 years in terms of section 108 of the evidence Act, 1872; and that since the appellant never pleaded to have become owner by way of adverse possession, the suit of the respondents for possession on the basis of inheritance is not barred by limitation under Article 65 of the Limitation Act, 1963. The first appeal preferred by the appellant was dismissed. The High Court dismissed the Second Appeal preferred by the appellant affirming the findings of the courts below and by relying on Entry 2(b) of the Schedule appended to the Punjab Limitation (Custom) Act, 1920. In appeal to this Court, the appellant contended that the date of death of the widow cannot by fixed by applying sections 107 and 108 of the Evidence Act, 1872; that since the widow gifted the property to him before the coming into force of the Hindu Succession Act 1956, she did not become the absolute owner under the Act and hence the courts below have erred in holding that the suit of the respondents is not barred by limitation under Article 65 of the Limitation Act, 1963; and that it was for the respondents to prove the date of death of the widow. The respondents contended that on the death of the widow, the succession reopened in view of the declaratory decree of the Civil Court; and that since the appellant has not set up any plea of adverse possession, the suit cannot be held to be barred by limitation and hence Article 65 of the Limitation Act, 1963 does not apply. Dismissing the appeal, the Court HELD: 1.1. The judgment and decree passed by the Civil Court in the earlier suit has attained finality. The deed of gift is valid only so long as the widow is alive. The widow had only a life interest. On her death, the succession reopened having regard to the provisions of the Hindu Succession Act, 1956. The respondents, being daughters, inherited the interest of the original owner. They were also reversioners in terms of their personal law as was opined by the Civil Court in the earlier suit. The respondents, therefore, rightly claimed their title by inheritance. [259-h; 260-c] 1.2. Entry 2(b) of the Punjab Limitation (Custom) Act, 1920 has no application herein as the title of the suit property in favour of the respondents had already been declared by the Civil Court in the earlier suit, subject to the condition that they remain owners thereof. The Civil Court took into consideration the customary law and the provisions of the Hindu Succession Act while arriving at the said finding. In the suit, it was not necessary for the respondents to claim their reversionary right as the same had already been declared in the earlier suit. The respondents have a better title. They were not parties in the earlier suit. They, therefore, claimed their title independent of the declaratory decree. [260-d, e, f; 261-e] Giani Ram v. Ramjilal, [1969] 1 SCC 813 and Shankuntla Devi v. Kamla and Ors., [2005] 5 SCC 390, referred to. 1.3. Both the parties have failed to prove the date of death of the widow. Having regard to the presumption contained in Section 108 of the Evidence Act, 1872, the Court shall presume that she was dead having not heard of for a period of seven years by those who would naturally have heard of her, it she had been alive. But that by itself would not be a ground to presume that she had died seven years prior to the date institution of the suit. [262-b, c] Lal Chand Marwari v. Mahant Ramrups Gir and Anr., AIR (1926) PC 9 and LIC of India v. Anuradha, [2004] 10 SCC 131, referred to. 1.4. The question of applicability of the Limitation Act, 1963 does not arise. The respondents have proved their title. It was for the appellant to prove the acquisition of title by adverse possession. Since the appellant did not raise any plea of adverse possession, the suit was not time barred. Since the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus. [263-e, f] Vasantiben Prahladji Nayak and Ors. v. Somnath Muljibhai Nayak and Ors., [2004] 3 SCC 376; Md. Mohammad Ali (Dead) By LRs. v. Jagdish Kalita and Ors., [2004] 1 SCC 271 and Karnataka Board of Wakf v. Government of India and Ors., [2004] 10 SCC 779, referred to. P.L. Jain and Balbir Singh Gupta for the Appellant. P.N. Mishra, K.P. Singh, Dr. H.P. Rathi, K.S. Rana, M.M. Kashyap, Shalman Ali and Hirender Chaudhary for the Respondents.

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CASE NO.:
Appeal (civil) 4426 of 1999

PETITIONER:
Saroop Singh

RESPONDENT:
Banto & Ors.

DATE OF JUDGMENT: 07/10/2005

BENCH:
S.B. Sinha & R.V. Raveendran

JUDGMENT:
J U D G M E N T

S.B. SINHA, J :

 The first defendant in the suit is in appeal before us. The plaintiff-
respondents filed a suit for possession and permanent injunction, being Suit 
No.218 of 1994. 

 One Shadi admittedly was the owner of the suit property. He left 
behind his widow, Indira Devi, who inherited the same. On or about 
7.1.1955, by a deed of gift Indira Devi donated the suit property in favour of 
the Appellant herein. One Harnama son of Jatti and Nathu son of Chetu (as 
reversioners of said Shadi) filed a suit being Suit No.204 of 1957 
challenging the legality of the said deed of gift, contending that said Indira 
Devi had a limited life interest therein.

 In terms of a judgment and decree dated 31.1.1958, the said suit was 
decreed. The said Indira Devi is stated to have died subsequently. Her date 
of death is not known. The Appellant  First Respondent contended that she 
died at Haridwar in the year 1961. While filing the aforementioned suit on 
7.7.1994, the Respondents raised a plea that as she was not heard for a 
period of seven years prior thereto, by them and by others who would have 
heard from her had she been alive, she was presumed to have been died . 

The plaintiffs-Respondents, as regard the earlier suit, averred :

 "One Harnama son of Jatti and one Nathu son of 
Chetu challenged the gift deed mentioned above in the 
year 1957 through a suit No.204 and sought declaration 
to the effect that the gift deed in dispute shall not effect 
their reversionary rights after the death of Inder Devi and 
their suit was decreed on 31.1.58 by Sub-Judge, Ist Class, 
Ambala. However, at the same time it was observed by 
the Ld. Sub-Judge, that declaratory decree will ensue for 
the benefit of daughters of Shadi deceased. Apart from 
it under the customary law of Punjab Smt. Inder Devi 
was not absolute owner on 7.,1.1955 i.e. the day of gift of 
the suit properties, rather on the other hand she was only 
having life interest in the suit properties and could not 
gift away the same to defendant No.1 as Smt. Inder Devi 
had already parted with the suit properties in favour of 
defendant No.1 and could not become absolute owner 
with the pasasing of Hindu Succession Act, 1956, rather 
her life interest continued through in the hand of 
defendant No.1."

In the said suit, the plaintiff-respondents prayed :

 "It is, therefore, prayed that the suit of the 
plaintiffs for possession as owner of the land comprised 
in Kh/kh. No.285/356, Khasra Nos. 194(8-4), 195(5-7), 
2124(6-18), 1854(1-2), 1859(4-7), 1856(4-7), 851(4-3), 
850/2(0-8), 1621(0-15), and for symbolical possession as 
owner of the land comprised in kh/kh No.285/337, 
Khasra Nos.849(1-10), 850(3-7), situated within the 
revenue limits of village Mullanpur Garib Dass and of 
1/6 share of kh. No.2078(3-7) and of 1/6 share out of 
Bara bounded as.and for permanent injunction 
restraining the defendant No.1 from alienating the suit 
properties to anybody may kindly be decreed in favour of 
the plaintiff against the defendants with costs.

 Any other relief this Ld. Court deeds fit may 
kindly be granted to the plaintiff in the interest of 
justice."

 The statements made in paragraph 1 was traversed by the Appellant 
herein in paragraph 3 of the written statement, contending :

"It is incorrect and denied. Smt. Inder Devi who had 
been absolute owner of the suit properties and she made a 
valid gift in favour of the answering defendant."

 A plea that the suit is time-barred was also raised as an additional 
plea. 

 The learned Trial Judge in view of the pleadings of the parties, inter 
alia, framed the following issues :

"3. What is the effect of the judgment and decree 
dated 31.1.1958 ? OPP. Parties.

4. Whether Smt. Inder Devi has not been heard for 
the last 7/7 = years back by plaintiff and other 
family members and is presumed to be dead ? 
OPP.

5. Whether plaintiffs are entitled to possession of the 
suit land. OPP.

6. Whether suit is time barred ? OPP."

 While dealing with Issue No.3, the Trial Court noticed that in the 
judgment and decree passed in Suit No.204 of 1957, which was marked as 
Ex.P3 and Ex.P4, it was observed that the declaratory decree would ensue 
the benefit of the daughters of Shadi, who were the plaintiffs therein, and on 
that basis decided the said issue in favour of the plaintiff-respondents. 

 As regard Issue No.4, it while holding that there was no cogent 
evidence proving the death of Indira Devi in the year 1961 recorded a 
finding that she was presumed to have died on account of her untraceability 
for more than 7 years in terms of Section 108 of the Indian Evidence Act. 
As regard Issue Nos.5 and 6, the Trial Court held :

"The defendant has nowhere pleaded that he became 
the owner of the suit land by way of adverse possession. 
No amount of evidence can be taken into account by 
travelling beyond the pleadings of the parties. The 
defendant has neither pleaded nor set up any adverse 
possession over the suit property. No period of 
limitation is prescribed for bringing a suit for possession 
on the basis of inheritance. The suit for possession on 
the basis of inheritance can fail if defendant proves that 
he has perfected his title by way of adverse possession. 
In the instant case, the defendants have not set up any 
adverse possession and consequently the suit is within 
time under Article 65 of the Limitation Act, 1963"

 The appeal preferred thereagainst by the Appellant was dismissed. In 
the Second Appeal filed before the High Court, the Appellant, inter alia, 
raised the question of limitation. The High Court relying on or on the basis 
of Entry 2(b) of the schedule appended to the Punjab Limitation (Customs) 
Act, 1920, affirming the findings of the courts below that the Appellant 
could not prove the date of death of Indira Devi, held that the suit is not 
barred by limitation stating :

"Since the defendant-appellant failed to prove the 
death of Indira Devi, it cannot be said that the suit filed 
by the plaintiffs is barred by time. In fact the suit filed is 
basing on the acquisition of title on the death of Indira 
Devi. Thus the suit is based on title as it cannot be 
disputed that the plaintiffs became entitled to the suit 
property on the death of their mother. It is for the 
defendant-appellant to prove that he has perfected in his 
title being in adverse possession for over 12 years from 
the date of death of Indira Devi and that the plaintiffs lost 
their right to sue by efflux of time. Under Article 65 of 
the Limitation Act, the burden of proof that he perfected 
his title by adverse possession is on the defendant-
appellant."

 Mr. P.L. Jain, the learned Senior Counsel appearing on behalf of the 
Appellant herein, would contend that the courts below committed a manifest 
error of law insofar as they failed to properly interpret the provisions of 
Sections 107 and 108 of the Indian Evidence Act; as by reason thereof a date 
of death cannot be fixed. It was urged that Indira Devi did not become an 
absolute owner in terms of the provisions of the Hindu Succession Act, 1956 
as she was not possessed of the property on the date of coming into force 
thereof and in that view of the matter the courts below had committed a 
serious error in passing the impugned judgments relying on or on the basis 
of Article 65 of the Limitation Act, 1963. Reliance, in this connection, has 
been placed on Giasi Ram and Others vs. Ramjilal and Others [(1969) 1 
SCC 813] 

 It was submitted that it was for the plaintiff-Respondents to prove the 
date of death of Indira Devi as they have not filed a suit based on title.

 Mr. P.N. Mishra, the learned Senior Counsel appearing on behalf of 
the plaintiff-respondents, on the other hand, would contend that on the death 
of Indira Devi, the succession reopened in view of the declaratory decree 
passed by the Civil Court. It was argued that having regard to the fact that 
the Appellant having not set up any plea of adverse possession, the suit 
cannot be held to be barred by limitation and in that view of the matter 
Article 65 of the Limitation Act, 1963 will have no application.

 It has not been disputed before us that the judgment and decree 
passed in Suit No.204 of 1957 had attained finality. In the said suit, it was 
held :

"In the present case the declaratory decree will ensue 
for the benefit of the daughters of Shadi deceased and the 
daughters' sons who are minors. In the circumstances, I 
would in exercise of my discretion, grant the plaintiffs a 
decree for a declaration to the effect that the gift in 
dispute shall not affect their reversionary rights after the 
death of defendant no.1. The parties are, however, left to 
bear their own costs"

 It is furthermore not in dispute that Indira Devi had only a life 
interest. The deed of gift dated 7.1.1955 was, therefore, held to be valid 
only so long as she was alive. On her death the succession reopened having 
regard to the provisions of the Hindu Succession Act, 1956. The 
Respondents being daughters inherited the interest of Shadi. They were 
also reversioners in terms of their personal law as was opined by the Civil 
Court in the earlier suit. The plaintiff-respondents, therefore, rightly claimed 
their title by inheritance. 

 Entry 2(b) of the Punjab Limitation (Customs) Act, 1920 provides for 
a limitation of three years, when a suit is filed for possession of ancestral 
immovable property which has been alienated on the ground that the 
alienation is not binding on the plaintiff according to custom. The said 
provision has no application herein as the title of the suit property in favour 
of the Respondents herein had already been declared by the Civil Court in 
the earlier suit, subject to the condition that they remain owners thereof. The 
Civil Court took into consideration the customary law as also the provisions 
of the Hindu Succession Act while arriving at the said finding. Moreover, a 
declaratory decree obtained by a reversioner is not binding upon actual 
owner, in view of the decision of this Court in Shankuntla Devi vs. Kamla 
and Others [(2005) 5 SCC 390].

 In the suit, it was not necessary for the Respondents herein to claim 
their reversionary right, as the same had already been declared in the earlier 
suit.

 This Court in Giasi Ram (supra) held :

"The Punjab Custom (Power to Contest) Act 1 of 1920, 
was enacted to restrict the rights exercisable by members 
of the family to contest alienations made by a holder of 
ancestral property. By virtue of Section 6 of the Act no 
person is entitled to contest an alienation of ancestral 
immovable property unless he is descended in the male 
line from the great-great-grandfather of the alienor. 
Under the customary law in force in the Punjab a 
declaratory decree obtained by the reversionary heir in an 
action to set aside the alienation of ancestral property 
enured in favour of all persons who ultimately took the 
estate on the death of the alienor for the object of a 
declaratory suit filed by a reversionary heir impeaching 
an alienation of ancestral estate was to remove a common 
apprehended injury, in the interest of the reversioners. 
The decree did not make the alienation a nullity  it 
removed the obstacle to the right of the reversioner 
entitled to succeed when the succession opened. By the 
decree passed in Suit No. 75 of 1920, filed by Giani Ram 
it was declared that the alienations by Jwala were not 
binding after his life time, and the property will revert to 
his estate. It is true that under the customary law the wife 
and the daughters of a holder of ancestral property could 
not sue to obtain a declaration that the alienation of 
ancestral property will not bind the reversioners after the 
death of the alienor. But a declaratory decree obtained in 
a suit instituted by a reversioner competent to sue has the 
effect of restoring the property alienated to the estate of 
the alienor."

 In this case, the Respondents herein have a better title. They were not 
parties in the earlier suit. They, therefore, claimed their title independent of 
the declaratory decree, although such right has been noticed therein. We 
would consider the question of applicability of Limitation Act little later but 
before doing that we may consider the question of date of death of Indira 
Devi.
 Sections 107 and 108 of the Indian Evidence Act read :
 "107. Burden of proving death of person 
known to have been alive within thirty years.- When 
the question is whether a man is alive or dead, and it is 
shown that he was alive within thirty years, the burden of 
proving that he is dead is on the person who affirms it.

 108. Burden of proving that person is alive 
who has not been heard of for seven years.-Provided 
that when the question is whether a man is alive or dead, 
and it is proved that he has not been heard of for seven 
years by those who would naturally have heard of him if 
he had been alive, the burden of proving that he is alive is 
shifted to the person who affirms it." 

Section 108 is a proviso to Section 107.
There is neither any doubt or dispute that the date of death of Indira 
Devi is not certain. By reason of the aforementioned provision, a 
presumption of death can be raised. In this case, however, death of Indira 
Devi is not in question, the date of death is. In the instant case, both the 
parties have failed to prove the date of death of Indira Devi. However, 
having regard to the presumption contained in Section 108 of the Indian 
Evidence Act, the Court shall presume that she was dead having not heard of 
for a period of seven years by those who would naturally have heard of him, 
if he had been alive, but that by itself would not be a ground to presume that 
she had died seven years prior to the date of institution of the suit 
In Lal Chand Marwari vs. Mahant Ramrups Gir and Another  AIR 
1926 PC 9], it was observed :
"Now upon this question there is, their Lordships are satisfied, 
no difference between the law of India as declared in the 
Evidence Act and the Law of England (Rango Balaji vs. 
Mudiyeppa (1899) 23 Bom. 296) and searching for an 
explanation of this very persistent heresy, their Lordships find it 
it in the words in which the rule both in India and in England is 
usually expressed. These words taken originally from In re 
Phene's Trusts (L.R. 5 Ch.139) run as follows :-
"If a person has not been heard of for seven years, there is a 
presumption of law that he is dead; but at what time within that 
period he died is not a matter of presumption but of evidence, 
and the onus of proving that the death took place at any 
particular time within the seven years lies upon the person who 
claims a right to the establishment of which that fact is 
essential."
Following these words, it is constantly assumed  not 
perhaps unnaturally  that where the period of disappearance 
exceeds seven years, death, which may not so. The 
presumption is the same if the period exceeds seven years. The 
period is one and continuous, though it may be divisible into 
three or even four periods of seven years. Probably the true 
rule would be less liable to be missed, and would itself be stated 
more accurately, if, instead of speaking of a person who had not 
been heard of for seven years, it described the period of 
disappearance as one of not less than seven years."

In LIC of India vs. Anuradha [(2004) 10 SCC 131], this Court held :

"12. Neither Section 108 of the Evidence Act nor logic, 
reason or sense permit a presumption or assumption 
being drawn or made that the person not heard of for 
seven years was dead on the date of his disappearance or 
soon after the date and time on which he was last seen. 
The only inference permissible to be drawn and based on 
the presumption is that the man was dead at the time 
when the question arose subject to a period of seven 
years' absence and being unheard of having elapsed 
before that time. The presumption stands unrebutted for 
failure of the contesting party to prove that such man was 
alive either on the date on which the dispute arose or at 
any time before that so as to break the period of seven 
years counted backwards from the date on which the 
question arose for determination. At what point of time 
the person was dead is not a matter of presumption but of 
evidence, factual or circumstantial, and the onus of 
proving that the death had taken place at any given point 
of time or date since the disappearance or within the 
period of seven years lies on the person who stakes the 
claim, the establishment of which will depend on proof 
of the date or time of death."

 However, the date of death of Indira Devi would not assume any 
significance, as would appear from the discussions made hereinafter. 

 In the instant case, the question of applicability of the Limitation Act 
does not arise. The Appellant-first defendant could have legitimately raised 
a plea that Indira Devi having died in the year 1961, his possession 
thereafter has become adverse to the true owner and, thus, on the expiry of 
the statutory period of limitation he had perfected his title by adverse 
possession. But, he did not raise such a plea. Even before us, Mr. Jain 
categorically stated that the Appellant does not intend to raise such a plea. 

 Articles 64 and 65 of the Limitation Act read thus :
"

Description of suit
Period of 
Limitation
Time from which 
period begins to 
run
64.
For possession of immovable 
property based on previous 
possession and not on title, 
when the plaintiff while in 
possession of the property has 
been dispossessed
Twelve years
The date of 
dispossession.
65.
For possession of immovable 
property or any interest 
therein based on title.
Explanation.-For the purposes 
of this article 
(a) where the suit is by a 
remainderman, a 
reversioner (other than 
a landlord) or a devisee 
the possession of the 
defendant shall be 
deemed to become adv 
erse only when the 
estate of the 
remainderman, 
reversioner or devisee, 
as the case may bay, 
falls into possession;
(b) where the suit is by a 
Hindu or Muslim 
entitled to the 
possession of 
immovable property on 
the death of a Hindu or 
Muslim female, the 
possession of the 
defendant shall be 
deemed to become 
adverse only when the 
female adverse only 
when the female dies;
(c) where the suit is by a 
purchaser at a sale in 
execution of a decree 
when the judgment-
debtor was out of 
possession at the date 
of the sale, the 
purchaser shall be 
deemed to be a 
representative of the 
judgment-debtor who 
was out of possession.

Twelve years
When the 
possession of the 
defendant 
becomes adverse 
to the plaintiff
 " 
 The statutory provisions of the Limitation Act have undergone a 
change when compared to the terms of Articles 142 and 144 of the schedule 
appended to the Limitation Act, 1908, in terms whereof it was imperative 
upon the plaintiff not only to prove his title but also to prove his possession 
within twelve years, preceding the date of institution of the suit. However, a 
change in legal position has been effected in view of Articles 64 and 65 of 
the Limitation Act, 1963. In the instant case, plaintiff-respondents have 
proved their title and, thus, it was for the first defendant to prove acquisition 
of title by adverse possession. As noticed hereinbefore, the first defendant-
Appellant did not raise any plea of adverse possession. In that view of the 
matter the suit was not barred. 
 In terms of Article 65 the starting point of limitation does not 
commence from the date when the right of ownership arises to the plaintiff 
but commences from the date defendant's possession becomes adverse. 
[See Vasantiben Prahladji Nayak and Others vs. Somnath Muljibhai Nayak 
and Others (2004) 3 SCC 376]

 'Animus possidendi' is one of the ingredients of adverse possession. 
Unless the person possessing the land has a requisite animus the period for 
prescription does not commence. As in the instant case, the Appellant 
categorically states that his possession is not adverse as that of true owner, 
the logical corollary is that he did not have the requisite animus. [See Md. 
Mohammad Ali (Dead) By LRs. Vs. Jagdish Kalita and Others, (2004) 1 
SCC 271, para 21] Yet again in Karnataka Board of Wakf vs. Government of India and 
Others [(2004) 10 SCC 779], it was observed :
 "Physical fact of exclusive possession and the animus 
possidendi to hold as owner in exclusion to the actual 
owner are the most important factors that are to be 
accounted in cases of this nature. Plea of adverse 
possession is not a pure question of law but a blended 
one of fact and law. Therefore, a person who claims 
adverse possession should show: (a) on what date he 
came into possession, (b) what was the nature of his 
possession, (c) whether the factum of possession was 
known to the other party, (d) how long his possession has 
continued, and (e) his possession was open and 
undisturbed. A person pleading adverse possession has 
no equities in his favour. Since he is trying to defeat the 
rights of the true owner, it is for him to clearly plead and 
establish all facts necessary to establish his adverse 
possession." In view of our findings aforementioned, we are of the opinion that 
there is no merit in this appeal, which is accordingly dismissed. No costs. 

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