Madhya Pradesh High Court
Murti Shri Ramjanki Guru Mandir Isagarh vs State Of M.P on 3 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:7716
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 3 rd OF APRIL, 2025
SECOND APPEAL No. 80 of 2012
MURTI SHRI RAMJANKI GURU MANDIR ISAGARH
Versus
STATE OF M.P
Appearance:
Mr. Deepak Shrivastava and Ms. Anupama Goyal - Advocates for
appellant.
Mr. S. S. Kushwaha - Govt. Advocate for respondent / State.
Mr. Vibhor Kumar Sahu - Advocate for Proforma respondents.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against
the judgment and decree dated 30.11.2011 passed by District Judge,
Ashoknagar in Civil Appeal No.10A/2011 as well as judgment and decree
dated 20.12.2010 passed by First Civil Judge, Class-II, Ashoknagar in RCS
No.147A/2009.
2. It is not out of place to mention here that one Raghuraj Singh and
Shivraj Singh have filed an application under Order 1 Rule 10 CPC for
impleading them as respondents. The application shall be considered after
the appeal is heard on the question of admission.
3. This appeal has been filed by the plaintiff who has lost his case from
both the courts below. Plaintiff filed a suit for declaration of title and
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permanent injunction in respect of the land in dispute which has been
described in paragraph 1 of the plaint. It is the case of the plaintiff that
Musammat Ahilyabai was the owner of the land in dispute and by registered
sale deed dated 26.10.1967, she alienated the property in dispute in favour of
the plaintiff. However, the SDO, Ashoknagar by order dated 16.08.2005
passed in 218A-73/2004-05 has declared the disputed land as Nishtar land.
Thus, it was claimed that the order passed by SDO on 16.08.2005 is null and
void and a relief for declaration of title was also sought.
4. Respondent – State filed its written statement and claimed that the
land in dispute was owned by the State Government and Ahilyabai has no
right or title in the same and thus, it was claimed that sale deed executed by
Ahilyabai on 26.10.1967 was without jurisdiction. All other plaint averments
were also denied. The order passed by SDO, Ashoknagar on 16.08.2005 was
also supported by respondent – State / defendant.
5. Trial Court after framing issues and recording evidence dismissed
the suit by holding that the plaintiff has failed to prove that Ahilyabai was
the owner of the land in dispute and the appellant had not preferred any
appeal against the order dated 16.08.2005 passed by SDO, Ashoknagar.
6. Being aggrieved by the judgment and decree passed by the trial
Court, appellant preferred an appeal which too has been dismissed by the
appellate Court by impugned judgment and decree dated 30.11.2011 passed
in RCA No.10A/2011.
7. Challenging the judgments and decree passed by courts below, it is
submitted by counsel for appellant that since name of Smt. Ahilyabai was
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recorded in the revenue records as Bhumi Swami, therefore, courts below
have committed a material illegality by holding that Smt. Ahilyabai was not
the owner and proposed the following substantial questions of law :-
“1- या व ान अधीन थ यायालय के िनणय एवं ड अिभलेख व सा य
के व होकर िनर त कये जाने यो य है ?
2- या वचारण यायालय के सम ितवाद ारा ऐसी कोई भी द तावेजी
सा य तुत नह ं क है जससे यह सा बत हो क अ ह याबाई को ववा दत भूिम का
व यप दनांक 26.10.1967 स पा दत करने का अिधकार नह ं था फर भी वचारण
यायालय ने यह मानकर क अ ह याबाई को व य प स पा दत करने का
अिधकार नह ं था, वाद का वाद िनर त करने म अवैधािनकता क है ?
3- या वचारण यायालय ने इस मह वपूण वैधािनक त य पर वचार नह ं
कया क वाद का ववा दत भूिम पर वष 1967 से िनर तर बे रोक-टोक ितवाद क
जानकार म क जा चला आ रहा है इस कारण से उसे उ भूिम पर वरोधी आिधप य
के आधार पर व व ा हो जाते ह?’
4- या अनु वभागीय अिधकार ारा करण मांक 218-ए-73/2004-05 म
पा रत आदे श दनांक 16.8.2005 पा रत करने के पूव विधवत वाद को सुनवाई का
अवसर नह ं दया था, इस कारण से उ आदे श ार भ से ह अवैधािनक होकर शू य
था?
5- या वचारण यायालय ने इस मह वपूण वैधािनक ब द ु पर भी वचार
नह ं कया क अ ह याबाई का नाम खसर म भूिम वामी के प म दज था तथा
प ा वत खसर म ववा दत भूिम वाद सं था मं दर के नाम से दज थी जसम कभी
भी कसी को कोई आप नह ं हुई उनका क जा लगभग 38 वष से चला आ रहा था?
6- या अधीन थ यायालय ने मा इस आधार पर क वाद ारा
अनु वभागीय अिधकार करण मांक 218-ए-73/ 2004-05 म पा रत आदे श दनांक
16.8.2005 के व स म यायालय म अपील तुत नह ं क है , इस आधार पर
वाद का वाद िनर त कया है जो अवैधािनक है ?
7- या अधीन थ यायालय ने वाद का वाद इस आधार पर भी िनर त करने
म अवैधािनकता क है क 1967 से लेकर दावा दायर दनांक तक नामांतरण कSignature Not Verified
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कायवाह नह ं क है ।
8- या हत का नामांतरण न कराने से व व का भाव समा होता है ?
9- या वचारण यायालय के सम वाद ने ववा दत भूिम पर अपना क जा
होना मौ खक व द तावेजी सा य सा बत कया है ?
10- या वचारण यायालय ने इस मह वपूण वैधािनक त य पर वचार नह ं
कया क वाद को र ज टड व य प के आधार पर 1967 म ह भूिम वामी के
अिधकार ा हो गये थे, व य प का बना स म यायालय ारा िनर त कये
बना अवैध नह ं माना जा सकता?”
8. Per contra, appeal is vehemently opposed by counsel for State.
9. Heard counsels for parties.
10. The suit for declaration of title as well as for declaration of order
dated 16.08.2005 as null and void was filed on 13.11.2009. The plaintiff has
relied upon only one khasra panchasala Exh. P/1 which is of the year 2009-
10. Thus, it is clear that copy of the aforesaid khasra panchasala was
obtained just prior to the filing of the civil suit and that khasra is of the year
2009-10 i.e. the year in which civil suit was filed. It is the case of appellant
that Smt. Ahilyabai had executed the sale deed in favour of the appellant on
26.10.1967. No document has been filed by the appellant to show that name
of Ahilyabai was ever recorded in any revenue record as exclusive owner of
the property in dispute. In fact the appellant should have filed the khasra
panchasala of the year 1967 or prior thereto but that has not been done.
Although, in I.A. No.1630/2025, intervenors, who claim to be the sub-
tenants, have filed photocopy of certain khasra numbers but in those khasra
panchasala also, “Mafi Dharmada” word has been used. In khasra panchasala
Exh. P/1, word “Mafi Dharmada” has been used by the authorities.
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11. By referring to the evidence of Manoj Sharma (PW/1), it was fairly
conceded by counsel for appellant that this witness had claimed that Mafi
Dharmada land is given to a person only for maintenance purposes. Manoj
Sharma in paragraph 1 of his cross-examination has further admitted that the
word “Dharmada” has been used in the khasra panchasala in order to show
that the land was given to Ahilyabai for maintenance purposes and her name
was never recorded in the capacity of Bhumi Swami . Manoj Sharma has also
admitted that Ahilyabai has the right to use the property. Thus, it is clear that
the name of Ahilyabai was not recorded in the capacity of Bhumi Swami but
in the capacity of Dharmada i.e. land was given to her only for maintenance
purposes. Therefore, it is clear that Ahilyabai had no right or title to alienate
the property to anybody. Under these circumstances, courts below did not
commit any mistake by holding the sale deed dated 26.10.1967 executed by
Ahilyabai in favour of appellant without jurisdiction and without any
authority. Even otherwise, it is well established principle of law that even if
an erroneous finding has been recorded by the courts below, still the same
cannot be corrected by this Court while exercising power under Section 100
of CPC.
12. The Supreme Court in the case of Union of India Vs. Ibrahim
Uddin and Another, (2012) 8 SCC 148 has held as under:-
“59. Section 100 CPC provides for a second appeal only on the
substantial question of law. Generally, a second appeal does not lie
on question of facts or of law. In SBI v. S.N. Goyal, (2008) 8 SCC
92 : (2008) 2 SCC (L&S) 678, this Court explained the terms
“substantial question of law” and observed as under : (SCC p. 103,
para 13)
“13. … The word ‘substantial’ prefixed to ‘question of law’
does not refer to the stakes involved in the case, nor intended
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to refer only to questions of law of general importance, but
refers to impact or effect of the question of law on the
decision in the lis between the parties. ‘Substantial questions
of law’ means not only substantial questions of law of
general importance, but also substantial question of law
arising in a case as between the parties. … any question of
law which affects the final decision in a case is a substantial
question of law as between the parties. A question of law
which arises incidentally or collaterally, having no bearing
on the final outcome, will not be a substantial question of
law. … There cannot, therefore, be a straitjacket definition as
to when a substantial question of law arises in a case.”
60. Similarly, in Chunilal V. Mehta & Sons Ltd. v. Century Spg.
and Mfg. Co. Ltd. [AIR 1962 SC 1314], this Court for the purpose
of determining the issue held : (AIR p. 1318, para 6)
“6. … The proper test for determining whether a question of
law raises in the case is substantial, would, in our opinion, be
whether it is of general public importance or whether it
directly and substantially affects the rights of the parties….”
61. In Vijay Kumar Talwar v. CIT [(2011) 1 SCC 673 : (2011) 1
SCC (Civ) 323] this Court held that : (SCC pp. 679-80, para 21)
“21. … ’14. A point of law which admits of no two opinions
may be a proposition of law but cannot be a substantial
question of law. To be ‘substantial’ a question of law must
be debatable, not previously settled by law of the land or a
binding precedent, and must have a material bearing on the
decision of the case, if answered either way, insofar as the
rights of the parties before it are concerned. To be a question
of law ‘involving in the case’ there must be first a foundation
for it laid in the pleadings and the question should emerge
from the sustainable findings of fact arrived at by court of
facts and it must be necessary to decide that question of law
for a just and proper decision of the case. … It will, therefore,
depend on the facts and circumstance of each case whether a
question of law is a substantial one … or not; the paramount
overall consideration being the need for striking a judicious
balance between the indispensable obligation to do justice at
all stages and impelling necessity of avoiding prolongation in
the life of any lis.
(See also Rajeshwari v. Puran Indoria [(2005) 7 SCC 60])
62. The Court, for the reasons to be recorded, may also entertain a
second appeal even on any other substantial question of law, not
formulated by it, if the Court is satisfied that the case involves
such a question. Therefore, the existence of a substantial question
of law is a sine qua non for the exercise of jurisdiction under the
provisions of Section 100 CPC. The second appeal does not lie on
the ground of erroneous findings of facts based on appreciation of
the relevant evidence.
63. There may be a question, which may be a “question of fact”,
“question of law”, “mixed question of fact and law” and
“substantial question of law”. Question means anything inquired;
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an issue to be decided. The “question of fact” is whether a
particular factual situation exists or not. A question of fact, in the
realm of jurisprudence, has been explained as under:
“A question of fact is one capable of being answered by way
of demonstration. A question of opinion is one that cannot be
so answered. An answer to it is a matter of speculation which
cannot be proved by any available evidence to be right or
wrong.”
(Vide Salmond on Jurisprudence, 12th Edn., p. 69, cited in
Gadakh Yashwantrao Kankarrao v. Balasaheb Vikhe Patil [(1994)
1 SCC 682 : AIR 1994 SC 678] , SCC p. 705, para 34.)
64. In Bibhabati Devi v. Kumar Ramendra Narayan Roy [(1945-
46) 73 IA 246 : AIR 1947 PC 19], the Privy Council has provided
the guidelines as in what cases the second appeal can be
entertained, explaining the provisions existing prior to the
amendment of 1976, observing as under : (IA p. 259)
“(4) … That miscarriage of justice means such a departure
from the rules which permeate all judicial procedure as to
make that which happened not in the proper sense of the
word ‘judicial procedure’ at all. That the violation of some
principle of law or procedure must be such an erroneous
proposition of law that if that proposition be corrected the
finding cannot stand; or it may be the neglect of some
principle of law or procedure, whose application will have
the same effect. The question whether there is evidence on
which the courts could arrive at their finding is such a
question of law.
(5) That the question of admissibility of evidence is a
proposition of law, but it must be such as to affect materially
the finding. The question of the value of evidence is not a
sufficient reason for departure from the practice.”
65. In Suwalal Chhogalal v. CIT [(1949) 17 ITR 269 (Nag)] the
Court held as under : (ITR p. 277)
“… A fact is a fact irrespective of evidence by which it is
proved. The only time a question of law can arise
in such a case is when it is alleged that there is no material on
which the conclusion can be based or no sufficient material.”
66. In Oriental Investment Co. Ltd. v. CIT [AIR 1957 SC 852]
this Court considered a large number of its earlier judgments,
including Sree Meenakshi Mills Ltd. v. CIT [AIR 1957 SC 49]
and held that where the question of decision is whether certain
profit is made and shown in the name of certain intermediaries,
were, in fact, profit actually earned by the assessee or the
intermediaries, is a mixed question of fact and law. The Court
further held that : (Oriental Investment case [AIR 1957 SC 852],
AIR p. 856, para 29)
“29. … inference from facts would be a question of fact or of
law according as the point for determination is one of pure
fact or a ‘mixed question of law and fact’ and that a finding
of fact without evidence to support it or if based on relevant
and irrelevant matters is not unassailable.”
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67. There is no prohibition to entertain a second appeal even on
question of fact provided the Court is satisfied that the findings of
the courts below were vitiated by non-consideration of relevant
evidence or by showing erroneous approach to the matter and
findings recorded in the court below are perverse. [Vide Jagdish
Singh v. Natthu Singh [(1992) 1 SCC 647 : AIR 1992 SC 1604],
Prativa Devi v. T.V. Krishnan [(1996) 5 SCC 353], Satya Gupta v.
Brijesh Kumar [(1998) 6 SCC 423], Ragavendra Kumar v. Firm
Prem Machinery & Co. [(2000) 1 SCC 679 : AIR 2000 SC 534],
Molar Mal v. Kay Iron Works (P) Ltd. [(2000) 4 SCC 285 : AIR
2000 SC 1261], Bharatha Matha v. R. Vijaya Renganathan [(2010)
11 SCC 483 : (2010) 4 SCC (Civ) 498] and Dinesh Kumar v.
Yusuf Ali [(2010) 12 SCC 740 : (2010) 4 SCC (Civ) 738] ]
68. In Jai Singh v. Shakuntala [(2002) 3 SCC 634 : AIR 2002 SC
1428] this Court held that (SCC p. 638, para 6) it is permissible to
interfere even on question of fact but it may be only in
“very exceptional cases and on extreme perversity that the
authority to examine the same in extenso stands permissible
–it is a rarity rather than a regularity and thus in fine it can
be safely concluded that while there is no prohibition as
such, but the power to scrutiny can only be had in very
exceptional circumstances and upon proper circumspection”.
Similar view has been taken in Kashmir Singh v. Harnam Singh
[(2008) 12 SCC 796 : AIR 2008 SC 1749] .
69. Declaration of relief is always discretionary. If the discretion is
not exercised by the lower court “in the spirit of the statute or
fairly or honestly or according to the rules of reason and justice”,
the order passed by the lower court can be reversed by the superior
court. (See Mysore SRTC v. Mirja Khasim Ali Beg [(1977) 2 SCC
457 : 1977 SCC (L&S) 282] , SCC p. 466, para 18.)
70. There may be exceptional circumstances where the High Court
is compelled to interfere, notwithstanding the limitation imposed
by the wording of Section 100 CPC. It may be necessary to do so
for the reason that after all the purpose of the establishment of
courts of justice is to render justice between the parties, though the
High Court is bound to act with circumspection while exercising
such jurisdiction. In second appeal the Court frames the substantial
question of law at the time of admission of the appeal and the
Court is required to answer all the said questions unless the appeal
is finally decided on one or two of those questions or the Court
comes to the conclusion that the question(s) framed could not be
the substantial question(s) of law. There is no prohibition in law to
frame the additional substantial question of law if the need so
arises at the time of the final hearing of the appeal.”
13. The Supreme Court in the case of C. Doddanarayana Reddy (Dead)
by Lrs. and Others V. C. Jayarama Reddy (dead) by Lrs. and Others, AIR
2020 SC 1912 has held as under:-
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“25. The question as to whether a substantial question of law
arises, has been a subject matter of interpretation by this Court. In
the judgment reported as Karnataka Board of Wakf v. Anjuman-E-
Ismail Madris-Un-Niswan, it was held that findings of the fact
could not have been interfered within the second appeal. This
Court held as under:
“12. This Court had repeatedly held that the power of the
High Court to interfere in second appeal under Section 100
CPC is limited solely to decide a substantial question of law,
if at all the same arises in the case. It has deprecated the
practice of the High Court routinely interfering in pure
findings of fact reached by the courts below without coming
to the conclusion that the said finding of fact is either
perverse or not based on material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC
392: (AIR 1996 SC 3021)), this Court held:
“It is now well settled that concurrent findings of fact of
trial court and first appellate court cannot be interfered
with by the High Court in exercise of its jurisdiction
under Section 100 of Civil Procedure Code. The Single
Judge of the High Court totally misconceived his
jurisdiction in deciding the second appeal under Section
100 of the Code in the way he did.”
14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166):
(AIR 1996 SC 3521), this Court held :
“Interference with the concurrent findings of the courts
below by the High Court under Section 100 CPC
must be avoided unless warranted by compelling
reasons. In any case, the High Court is not expected to
reappreciate the evidence just to replace the findings of
the lower courts. … Even assuming that another view is
possible on a reappreciation of the same evidence, that
should not have been done by the High Court as it
cannot be said that the view taken by the first appellate
court was based on no material.”
15. And again in Secy., Taliparamba Education Society v.
Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this
Court held: (SCC p. 486: (AIROnline 1997 SC 17), para 5)
“The High Court was grossly in error in trenching upon
the appreciation of evidence under Section 100 CPC
and recording reverse finding of fact which is
impermissible.”
14. The Supreme Court in the case of Gurnam Singh (dead) by Legal
Representatives and Others Vs. Lehna Singh (dead) by Legal
Representatives, (2019) 7 SCC 641 has held as under:-
“13. At the outset, it is required to be noted that the learned trial
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court held the will dated 17-1-1980, which was executed in favour
of original Defendants 2 to 6, surrounded by suspicious
circumstances and therefore did not believe the said will.
13.1. The suspicious circumstances which were considered by the
learned trial court are narrated/stated hereinabove. On
reappreciation of evidence on record and after dealing with each
alleged suspicious circumstance, which was dealt with by the
learned trial court, the first appellate court by giving cogent
reasons held the will genuine and consequently did not agree with
the findings recorded by the learned trial court. However, in
second appeal under Section 100 CPC, the High Court, by the
impugned judgment and order has interfered with the judgment
and decree passed by the first appellate court. While interfering
with the judgment and order passed by the first appellate court, it
appears that while upsetting the judgment and decree passed by the
first appellate court, the High Court has again appreciated the
entire evidence on record, which in exercise of powers under
Section 100 CPC is not permissible. While passing the impugned
judgment and order, it appears that the High Court has not at all
appreciated the fact that the High Court was deciding the second
appeal under Section 100 CPC and not first appeal under Section
96 CPC. As per the law laid down by this Court in a catena of
decisions, the jurisdiction of the High Court to entertain second
appeal under Section 100 CPC after the 1976 Amendment, is
confined only when the second appeal involves a substantial
question of law. The existence of “a substantial question of law” is
a sine qua non for the exercise of the jurisdiction under Section
100 CPC. As observed and held by this Court in Kondiba Dagadu
Kadam, (1999) 3 SCC 722, in a second appeal under Section 100
CPC, the High Court cannot substitute its own opinion for that of
the first appellate court, unless it finds that the conclusions drawn
by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable
law;
OR
(ii) Contrary to the law as pronounced by the Supreme
Court;
OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if
the first appellate court has exercised its discretion in a judicial
manner, its decision cannot be recorded as suffering from an error
either of law or of procedure requiring interference in second
appeal. It is further observed that the trial court could have decided
differently is not a question of law justifying interference in
second appeal.
16. In the aforesaid decision, this Court has observed and held as
under: (Madamanchi Ramappa, AIR 1963 SC 1633, AIR pp.
1637-38, para 12)
“12. … whenever this Court is satisfied that in dealing with a
second appeal, the High Court has, either unwittingly and in
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a casual manner, or deliberately as in this case, contravened
the limits prescribed by Section 100, it becomes the duty of
this Court to intervene and give effect to the said provisions.
It may be that in some cases, the High Court dealing with the
second appeal is inclined to take the view that what it regards
to be justice or equity of the case has not been served by the
findings of fact recorded by courts of fact; but on such
occasions it is necessary to remember that what is
administered in courts is justice according to law and
considerations of fair play and equity however important they
may be, must yield to clear and express provisions of the
law. If in reaching its decisions in second appeals, the High
Court contravenes the express provisions of Section 100, it
would inevitably introduce in such decisions an element of
disconcerting unpredictability which is usually associated
with gambling; and that is a reproach which judicial process
must constantly and scrupulously endeavour to avoid.”
19. Before parting with the present judgment, we remind the High
Courts that the jurisdiction of the High Court, in an appeal under
Section 100 CPC, is strictly confined to the case involving
substantial question of law and while deciding the second appeal
under Section 100 CPC, it is not permissible for the High Court to
reappreciate the evidence on record and interfere with the findings
recorded by the courts below and/or the first appellate court and if
the first appellate court has exercised its discretion in a judicial
manner, its decision cannot be recorded as suffering from an error
either of law or of procedure requiring interference in second
appeal. We have noticed and even as repeatedly observed by this
Court and even in Narayanan Rajendran v. Lekshmy Sarojini,
(2009) 5 SCC 264 : (2009) 2 SCC (Civ) 500, despite the catena of
decisions of this Court and even the mandate under Section 100
CPC, the High Courts under Section 100 CPC are disturbing the
concurrent findings of facts and/or even the findings recorded by
the first appellate court, either without formulating the substantial
question of law or on framing erroneous substantial question of
law.”
15. This court has independently considered the evidence which was
led by the parties and in view of the fact that the word “Mafi Dharmada” was
also recorded along with name of Smt. Ahilyabai, it is clear that Smt.
Ahilyabai was not the owner of the property in dispute and the property was
given to her only for maintenance purposes.
16. It is well established principle of law that a vendor cannot alienate
the title better than what he/she is/was having.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 04-04-2025
17:56:04
NEUTRAL CITATION NO. 2025:MPHC-GWL:7716
12 SA-80-2012
17. Since, Smt. Ahilyabai had no authority to alienate the property,
therefore, plaintiff would not get any title by virtue of sale deed dated
26.10.1967.
18. As no specific question of law arise in the present appeal,
accordingly, appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 04-04-2025
17:56:04
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