Anjuman-E-Islam Vs Dawalsab S/O Maliksab Anapakatti

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NC: 2025:KHC-D:7449 RSA No. 100682 of 2016

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 9^TH DAY OF JUNE 2025

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BEFORE

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THE HON'BLE MR. JUSTICE M.G.S. KAMAL

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RSA NO.100682 OF 2016 (DEC/INJ)

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BETWEEN:

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ANJUMAN-E-ISLAM, ILAKAL THROUGH ITS CHAIRMAN.

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… APPELLANT

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(BY SRI. B. SHARANABASAWA, ADVOCATE)

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AND:

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DAWALSAB S/O. MALIKSAB ANAPAKATTI, AGED ABOUT 61 YEARS, OCC: AGRICULTURE, R/O: ILAKAL VILLAGE OF HUNUGUND TALUK, SINCE DEAD BY LRS.

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Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad

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1A. YAKUBSAB S/O. DAWALSAB ANAPAKATTI, AGED ABOUT: 45 YEARS, OCC:AGRICULTURE, R/O: ALAMPURPET, ILAKAL VILLAGE, HUNUGUND TALUK – 587 101.

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1B. SMT. PEERAMMA W/O. HUSSAINSAB AGED ABOUT 57 YEARS, OCC: HOUSEHOLD, R/O: ALAMPURPET, ILAKAL VILLAGE, HUNUGUND TALUK – 587 101.

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1C. SMT. ZUBEDA BEGUM W/O. RAJESAB, AGED ABOUT 40 YEARS, OCC: HOUSEHOLD, R/O: LAYADGUNDI VILLAGE, BADAMI TALUK, BAGALKOT DIST – 587 102.

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SYED SHA MURTUZA QUADRI PEERPASHA S/O. SYED SHA MAHBOOB QUADRI HIDAYATULLA HUSSAINI, AGED ABOUT 53 YEARS, OCC: GOVERNMENT SERVANT,

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R/O: ILAKAL, TALUK HUNUGUND – 587 101.

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SYED SHA ABDUL HASSAN QUADRI, S/O SYED MURTUZA QUADRI, AGED ABOUT 73 YEARS, R/O: KANKAL, TQ: B. BAGEWADI, BIJAPUR DIST – 586 101, SINCE DECEASED BY LR’S.

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3A. SYED SHA SULTAN AHAMED QUADRI, S/O. SYED SHA ABDUL HASAN QUADRI, AGED ABOUT 62 YEARS, OCC: AGRICULTURE, R/O: KANKAL, TQ: B. BAGEWADI, BIJAPUR DIST – 586 101.

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3B. SMT. AZIZABI W/O. SYED SHA ABDUL HASAN QUADRI, AGE:MAJOR, OCC: HOUSEHOLD WORK, R/O: KANKAL, TQ: B.BAGEWADI, BIJAPUR DIST – 586 101.

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3C. SMT. ZAMRUD BEGUM W/O. SYED SHA RAHIMUDDIN QUADRI, AGE:MAJOR, OCC: HOUSEHOLD WORK, R/O: GOUSHAL PETH, MUDGAL, TQ:MUDUGAL, RAICHUR DIST – 584 101.

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3D. SMT. KHAMURUNNISA BEGUM W/O. BASHU MIYA JAGIRDAR, KSRTC DRIVER, AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O HAVELI GALLI, VIJAYAPUR, TQ AND DIST:VIJAYAPUR – 586 101.

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… RESPONDENTS

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[BY SRI. SUNIL S. DESAI, ADVOCATE FOR R1(A TO C) & R2; SRI. SOURABH R. MIRJE, ADVOCATE FOR SRI. SHIVARAJ S. BALLOLI, ADVOCATE FOR R3(A, C AND D); APPEAL STANDS ABATED AGAINST R3(B)]

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THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 14.10.2014 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC AT HUNUGUND, IN R.A.NO.53/2013, BY CONFIRMING THE JUDGMENT AND DECREE DATED 21.10.2013, PASSED BY THE COURT OF PRL. CIVIL JUDGE AND JMFC AT, HUNUGUND, IN O.S.NO.343/1993, BY ALLOWING THIS REGULAR SECOND APPEAL IN THE INTEREST OF JUSTICE AND EQUITY AND ETC.,

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NC: 2025:KHC-D:7449 RSA No. 100682 of 2016

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HC-KAR

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THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

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This appeal is by defendant No.2, being

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aggrieved by the judgment and decree, dated 14.10.2014, passed in R.A. No.53/2013, on the file of the Senior Civil Judge and JMFC, Hungund (for short “the first Appellate Court”), by which the First Appellate Court, while allowing the appeal filed by the plaintiffs – respondent Nos.1 and 2 herein has set aside the judgment and decree, dated 21.10.2013, passed in O.S. No.343/2013, on the file of the Civil Judge and JMFC, Hungund (for short “the trial Court”), and decreed the suit declaring that the plaintiffs being the absolute owners of the suit schedule land and the sale deed executed by defendant No.2 in favour of defendant No.1 as

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not binding on the suit land and has further granted the relief of permanent injunction against defendant No.2.

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The above suit is filed by the plaintiffs contending that:

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NC: 2025:KHC-D:7449 RSA No. 100682 of 2016

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(a) Originally the land bearing Sy. No.35/1 measuring 5 acres 3 guntas belonged to plaintiff No.1. That prior to 1970, plaintiff No.1 had orally gifted a portion of the suit land in favour of Hazrat Syed Sha Mehboob Quadri Hidayatulla Hussaini Sajjada Nasheen Malkhed for the purpose of construction of house and a mosque.

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(b) That on 27.08.1970, plaintiff No.1 sold an extent of 4 acre 25 guntas out of entire extent of 5 acres 3 guntas of Sy.No.35/1 in favour of defendant No.2 – appellant herein and the remaining 18 guntas of land was shown to have been retained on the eastern side of said 4 acres 25 guntas.

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(c) On 06.10.1970, the plaintiffs sold further portion of the suit land i.e., out of the remaining 18 guntas in favour of Syed Sha Mahboob Quadri, under the registered sale deed. That, the remaining open land is in lawful possession of Syed Sha Mahbood Quadri. In the year 1970, the plaintiffs also constructed a Katta

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called as Mehboob Subhani Chilla at the eastern corner of the said land.

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(d) That, the City Survey Office and the Municipality assigned the CTS No.4438/A to the suit lands and assigned CTS No.4438/B to the portion of 4 acres 25 guntas purchased by defendant No.2. Thus, two separate CTS maps were prepared by the CTS office, Ilkal.

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(e) That, plaintiff No.2 is the son of Syed Sha Mehboob Quadri Hidayatulla Saheb, who after the demise of his father continued to be in lawful actual possession and enjoyment of the suit land along with his brothers.

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(f) That defendant Nos.1 and 2 without having any right, title or interest over the suit land were trying to trespass into the suit land and to dig foundation pit, which was objected by the plaintiffs. At that time defendant No.1 informed that he had purchased the portion of the suit land bearing CTS No.4438/A from

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NC: 2025:KHC-D:7449 RSA No. 100682 of 2016

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defendant No.2 under the registered sale deed dated 18.06.1974.

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(g) That defendant No.2 is the owner only in respect of CTS No.4438/B measuring 4 acres 25 guntas and he had no right over the property in CTS No.4438/A. Since based on the aforesaid documents, defendant No.1 attempted to interfere with the plaintiff’s lawful possession, plaintiff was constrained to file the above suit.

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Written statement is filed by defendant Nos.1 and 2. Defendant No.1 contended that he is a bonafide purchaser of the property from defendant No.2 and the plaintiff had never objected for the said sale. As such he has no locus standi to file the suit.

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Defendant No.2 in his written statement denying the plaint averments and allegations contended that the plaintiff was the owner of Sy.No.35/1 measuring 5 acres 3 guntas up to 1970 and that entire 5 acres 3 guntas of land was permitted to be used for non agriculture purposes in

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terms of the order dated 02.11.1971 by the Assistant Commissioner, Bagalkot, issued in the name of the then Chairman of defendant No.2. As such, plaintiff could not have sold portion of suit property in favour of Sayed Mahaboob Quadri on 06.10.1970 when the entire land was merged into non agricultural land. The sale deed dated 06.10.1970 is therefore void. It is further contended that CTS No.4438/A and CTS No.4438/B has been cancelled and fresh plot No.54 has been allotted to the said CTS numbers. The then Chairman of Anjuman-E-Islam had sold some portion of the plot No.54, to defendant No.1 on 18.06.1974, as such, sought for dismissal of suit.

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Based on the pleadings, the trial Court framed

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the following issues and additional issues:

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“ISSUES

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1. Whether the plaintiffs prove that, plaintiffs are owners and in lawful possession of suit land bearing CTS No.4438/A measuring 18 Guntas out of R.S.No.35/1 measuring 5 acres 3 Guntas of Ilkal town?

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2. Whether plaintiff proves that, defendants are trying to interfere with plaintiffs peaceful possession over suit property?

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3. Whether plaintiffs are entitled to declaration and permanent injunction as prayed for in this suit?

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4. Whether defendants proves that the sale deed dts., 18-06-1974 said to have been executed by defendant No.2 in favour of the defendant No.1 is binding upon the plaintiffs ?

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5. What order or decree?

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ADDITIONAL ISSUES.

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1. Whether the relief sought at para No.3 of prayer column of plaint is barred by limitation U/s. 59 of the Limitation Act. R/w.Sec.3 of T.P.Act and S.17 of Indian Registration Act?

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2. Whether relief at para No.1 of prayer column of plaint is barred by Indian Registration Act?

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3. Whether the plaintiff lost possession when defendant No.2 formed layout in the suit land and if to verify at para No.1 of prayer columan and plaint is barred by limitation?

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4. Whether the defendant No.1 is bonafide purchaser for value without notice of plaintiff No.2's claim as pleaded in para 12 B of W.S. of defendant No.1A?

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5. Whether the defendant No.2 executed a sale deed in favour of defendant No.1 as ostensible owner as pleaded in para 12 of the written statement of defendant No.1A?

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6. Whether the plaintiff No.2 is estopped from asserting his right to suit property in view of his own conduct and reliable of his father as pleaded in para 12(a) of written statement of Defendant No.1A?

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7. Whether the defendant No.1 perfected his title to the suit property by adverse possession as pleaed in para 12(g) of the written statement oif defendant No.1A?

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8. Whether defendant No.2 proves that, plaintiff No.1 had given full authority to its chairman for conversion of entire S.No.35/1 measuring 5 acres, 3 guntas into N.A. prior to 1970, as alleged in para No.2 of its written statement?

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9. Whether the defendant No.2 further proves that, he is the owner of the entire land S.No.35/1 measuring 5 Acres, 3 Guntas including the suit land as alleged in para 7 of his written statement?”

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The plaintiff examined himself as PW1 and exhibited 69 documents marked at Ex.P1 to P69. Another witnesses are examined as PW2 and PW3. Legal representatives of defendant No.1 has been examined as DW1 to DW3 and exhibited 24 documents marked as Ex.D1 to D24. The trial Court on appreciation of evidence answered issues Nos.1, 2, 3 and 4 and additional issue No.4, 5, 6, 7, 8 and 9 in negative, additional issue Nos.1, 2 and 3 in the affirmative. Consequently dismissed the suit.

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Being aggrieved, the plaintiff preferred an appeal

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in R.A. No.53/2013 before the First Appellate Court.

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The First Appellate Court framed the following point for its consideration;

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“POINT

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Whether the judgment and decree passed by the Principal Civil Judge and JMFC, Hunugund in O.S.No.343/1993 dated 21.10.2013 is perverse, capricious and liable to be interfered by this court”

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The legal representatives of the deceased

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defendant No.1 had filed their no objection memo stating that they have no objection to allow the appeal and decree the suit. Since the appellant-defendant No.2 had remained absent and had not contested the matter, the First Appellate Court apart from taking note of the factual aspect of the matter, allowed the appeal, set aside the judgment and decree passed by the trial Court and decreed the suit as prayed for. Being aggrieved, defendant No.2 is before this Court.

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The learned counsel appearing for defendant No.2-appellant submitted that the First Appellate Court without appreciating the facts and evidence of the matter, has merely on the basis of a memo filed by the legal

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representatives of defendant No.1 of they not having any objection in decreeing in the suit, ought not to have allowed the appeal. He submits that the First Appellate Court being the final Court of facts, ought to have adjudicated the matter on merits whether or not defendant No.2 - appellant herein had contested the case. He submits that the claim made by the plaintiffs was ambiguous without clearly demarcating the properties, and without clarifying the said position, the First Appellate Court ought not to have decreed the suit. Hence, he submits that the judgment and order suffers from perversity.

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The learned counsel for the respondent - legal representatives of defendant No.1 submits that the memo was filed by the legal representatives of deceased defendant No.1 on the premise of seeking appropriate relief against defendant No.1. He submits after filing the memo indicating their no objection to allow the appeal, legal representatives of defendant No.1 had filed a suit seeking relief of mandatory injunction and for direction to

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rectification of sale deed executed by defendant Nos.1 and 2 in favour of their father and that the said suit has been dismissed, which order has been confirmed by the First Appellate Court and the second appeal is pending consideration.

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Heard and perused the records.

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There is no dispute of the fact that an extent of 5 acres 3 guntas of land originally belonged to plaintiff No.1. There is also no dispute of the fact that plaintiff No.1 in terms of the deed of sale deed dated 27.08.1970 conveyed an extent of 4 acres 25 guntas of land in favour of Defendant No.2. There is also no dispute of the fact that plaintiff No.1 had indeed retained 18 gutnas of land, which was assigned with CTS No.4438/A. The land which was sold in favour defendant No.2 measuring 4 acres 25 guntas of land was assigned in the CTS No.4438/B. That plaintiff No.1 had sold a portion of land in CTS No.4438/A to plaintiff No.2 in terms of sale deed dated 06.10.1970.

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The dispute appears to have arose when defendant No.2 conveyed a portion of Plot No.54, apparently forming part of 18 guntas of land retained by plaintiff No.1 in favour of defendant No.1 on 18.06.1974. The only defence which is set up by defendant No.2 in its written statement as noted above is that after the sale of 4 acres 25 guntas of land in its favour by plaintiff No.1, a joint application was made by the plaintiff No. 1 and defendant No.2 seeking change of land usage from agriculture to non agricultural purposes. As such, extent of 18 guntas of land retained by the plaintiff No.1, stood merged with the extent of 4 acres 25 guntas of land.

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The trial Court dismissed suit. The First Appellate Court while recording the aforesaid factual events, on a memo filed by the legal representatives of defendant No.1 that they have no objection for allowing the appeal, proceeded to pass the order allowing the appeal. Since defendant No.1 who is the only claimant in respect of the said portion of land forming part of 18 guntas of land

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retained by plaintiff No.1 had indicated no objection in decreeing the suit, no fault can be found in the First Appellate Court in allowing the appeal and decreeing the suit as sought for.

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A perusal of the written statement filed by defendant No.2 would indicate that it has no grievance with regard to the extent of 4 acres 25 guntas of land conveyed in its favour by plaintiff No.1. As rightly taken note of by the First Appellate Court, defendant No.2 is cannot claim any right over any portion of the property other than what was conveyed in its favour. The contention that mere change of usage of 18 guntas of land retrained by plaintiff No.1 stood merged with the 4 acres 25 guntas of land and that defendant No.2 had right to deal with the said property cannot be countenanced.

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Another aspect of the matter is even assuming defendant No.2 had indeed sold a portion out of said 18 guntas of land in favour of defendant No.1, admittedly, defendant No.2 had no right, title and interest over the said

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portion of the property. The aggrieved party, if any, could only be defendant No.1. Since, defendant No.1 himself filed a memo indicating no objection to decree the suit, nothing further remained for consideration in the matter.

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In that view of the matter, this Court do not see any substantial question of law in the matter warranting interference.

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Accordingly, the appeal is dismissed.

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Sd/(M.G.S. KAMAL) JUDGE

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VNP & VMB / CT-ASC List No.: 1 Sl No.: 29

Anjuman-E-Islam v. Dawalsab S/O Maliksab Anapakatti

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Anjuman-E-Islam v. Dawalsab S/O Maliksab Anapakatti

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