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Patna High Court

Baidyanath SharmaversusSmt. Rama Devi

Decided
Disposal
DISMISSED

Holding

The High Court held that the trial court correctly applied the statutory test of bona‑fide personal necessity, that the tenant failed to plead partial eviction, and therefore the revision was dismissed.

Summary

The plaintiff, Rama Devi, purchased a plot and leased it to the defendant, Baidyanath Sharma, for a monthly rent of Rs.500 with conditions against sub‑letting and structural changes. The plaintiff later sought eviction on the ground of bona‑fide personal necessity under Section 11(1)(c) of the Bihar Building (Lease, Rent, and Eviction) Control Act, 1982, and the Munsif decreed eviction, ordering the tenant to vacate within 90 days. The tenant filed a civil revision under Section 14(8) of the same Act, contending that the trial court failed to consider the statutory requirement of partial eviction under Section 11(i)(C). The respondent argued that the landlord’s need was genuine, the tenant had not raised partial eviction, and the revisional court cannot re‑appreciate evidence. The High Court held that the trial court had correctly applied the law, that the onus to plead partial eviction lay on the tenant, and that there was no perversity or jurisdictional error. Consequently, the revision was dismissed and the original eviction decree affirmed.

Issues considered

  • Whether the trial court erred by not framing or deciding the issue of partial eviction as required by Section 11(i)(C) of the Bihar Building (Lease, Rent, and Eviction) Control Act, 1982.
  • Whether the revisional court can re‑appreciate evidence and entertain a fresh plea of partial eviction at the revision stage.

Legislation cited

Subjects

  • eviction
  • personal necessity
  • partial eviction
  • Bihar Building Act
  • civil revision
  • landlord‑tenant
  • bona fide requirement

Judgment

                       IN THE HIGH COURT OF JUDICATURE AT PATNA
                                      CIVIL REVISION No.68 of 2022
                  ======================================================
                  Baidyanath Sharma son of Late Krishna Sharma, Resident of Village-
                  Hasanpur Surat Barai Tola, P.S.-Patori, District-Samastipur.

                                                                      ... ... Petitioner/s
                                                        Versus
                  Smt. Rama Devi W/o Gopal Prasad Khator, Resident of Village-Hasanpur
                  Surat Barai Tola, P.S.-Patori, District-Samastipur.

                                                            ... ... Respondent/s
                  ======================================================
                  Appearance :
                  For the Petitioner/s     :       Mr. Surendra Kishore Thakur, Advocate
                                                   Mr. Aditya Kumar Pandey, Advocate
                  For the Respondent/s     :       Mr. Shankar Prasad Roy, Advocate
                  ======================================================
                  CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
                  MALVIYA
                                         CAV ORDER
14   20-01-2026                          This Civil Revision application no. 68 of 2022

                    has been filed under Section 14(8) of Bihar Building (Lease,

                    Rent, and Eviction) Control Act, 1982. (hereinafter referred to

                    as “the Act”) against the judgment and decree dated 27.08.2022

                    passed by the Munsif, Samastipur in Eviction Suit No. 02 of

                    2011 whereby and where under the learned trial Court has

                    decreed the suit directing the defendant/petitioner to vacate the

                    premises within 90 days from the date of the order otherwise the

                    plaintiff/respondent would be at liberty to get the delivery of

                    possession through the process of the court.

                                         2. Heard learned counsel for the petitioner and

                    learned counsel for the opposite party.

                                         3. Briefly stated, the facts of the case are that the
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          plaintiff has purchased a piece of land pertaining to Khata no.

          185, Plot no. 692 measuring an area 16 dhur through a

          registered Sale Deed dated 07.03.2008 from her father-in-law

          namely late Sitaram prasad Khator and constructed structure and

          has given on rent to the defendant on monthly rent. Further, the

          defendant has taken premises on rent on monthly rent of

          Rs.500/- for doing a business of wooden furniture and with the

          statement that the defendant will pay monthly rent in the first

          week of every month and will not sublet the premises without

          consent of the land owner and also will not change structure.

                              4. It was further case of the plaintiff that a deed

          of kirayanama was prepare on stamp paper for 11 months dated

          26.09.2008 and again it was re-validated for further 11 months

          till 30.09.2010. Further, the defendant appeared and filed his

          written statement on 25.04.2011 stating therein that he is the

          tenant in the suit premises but there is a dispute between the

          three sons of Sita Ram Khatore and it is the plaintiff who

          requested the defendant to start a shop in the suit land and the

          same was constructed by defendant in July, 2008 and when

          dispute arose it was agreed between the co-sharer of plaintiff

          that rent will be paid to person who win the case.

                              5. It was also stated and asserted by the
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          defendant that "Kirayanama" dated 26.09.2008 and subsequent

          lease deed for the period 01.11.2009 to 21.01.2010 was

          executed by the defendant due to fear of eviction and is doing

          business as a tenant. The lease deed dated 21.01.2010 was for a

          period of five (5) years and plaintiff has no right to evacuate the

          suit premises during this period and that defendant has spent Rs.

          One lakh seventy thousand towards construction of suit shop,

          which money needs to be adjusted and lastly it was prayed that

          suit may be dismissed with cost.

                              6. The trail Court after examining the exhibit-3

          held that suit land belonged to Sita Ram Khatore who sold it to

          plaintiff and unless the sale deed is set-aside by competent

          Court      it   will     be     a    valid    document   and   therefore,

          plaintiff/respondent is the landlord of suit shop and since no

          complaint was made earlier before any officer or trial Court,

          therefore signature of defendant on lease deed will be presumed

          to be valid and legal and it was held that there is relationship of

          landlords and tenant between the plaintiff and defendant and

          issued no. "Gha" was also decided in favour of plaintiff; it was

          held that son of plaintiff i.e., Bikash Kumar wants to run a

          medicine shop in suit premises who has deposed before trial

          Court as plaintiff witness no. 6 stated that since 2010 he wants
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          to run a medicine shop.

                              7. It was further challenged by the defendant that

          plaintiff has a medicine shop at Patawari Bazar which is run by

          her husband and sons and held by the trial Court that her son

          wants to run his own shop and he has all the right to run his own

          shop separate from family business; and this issue was also

          decided in favour of plaintiff and it was held that plaintiff

          requires the suit shop for bonafide personal necessity and is

          entitled to get decree of eviction against defendant/tenant and

          lastly it was held that suit as framed is maintainable and plaintiff

          has valid cause of action to file the suit and therefore suit was

          decreed with a direction to defendant to vacate the suit shop

          within 90 days.

                              8. The learned counsel for the petitioner submits

          that from the entire judgment of the learned trial Court, it

          appears that neither the learned trial Court has framed an issue

          of partial eviction nor the learned trial Court has considered or

          whisper a single word with regard to partial eviction that

          whether the partial eviction will satisfy the requirement of the

          plaintiff/respondent or not and as such it appears that learned

          trial Court has failed to consider main ingredients of section

          11(i)(C) of the Act.
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                              8.i. He further submits that while dealing with

          the suit for eviction on the ground of personal necessity, it is

          onus cast upon the trial Court to frame an issue with regard to

          partial eviction or deal with the same, which is a requirement of

          Section 11(i)(C) of the Act. He further relied upon the judgment

          passed by Co-ordinate Bench of this Court in Shyam Babu Sah

          v. Shyam Babu Sah reported in PLJR (2023) 1 Page 61, which

          reads as “Bihar Building (Lease Rent and Eviction) Control Act,

          1982, Section 11(i)(C) and 14(8) -Revision- Eviction on the

          ground of personal necessity and plea that the Court below has

          not considered the question of partial eviction as required by

          the proviso under Section 11(i)(C) of the act which is mandatory

          requirement and no issue of partial eviction was framed by the

          Trial Court.”

                              8.ii. Further, it is submitted that the power under

          the proviso to Section 14(8) of the Act is related to the extent of

          seeing as to whether the order of eviction is according to law or

          not for this related purpose, the Court can reappraise the

          evidence. However, on account of reappraise the evidence as an

          appellate Court and will not interfere with the order on the

          ground that on appreciation of evidence a different view can be

          taken and the High Court will interfere if any case it is found
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          that the order is based on no evidence or the trial Court has

          ignored the material evidence which has effected the fine are

          perverse, unreasonable or having been arrived at without

          considering statutory requirement for grant of relief. The Trial

          Court is bound to consider the mandatory requirement of partial

          eviction for which he has to frame such issue there are trial of

          suit with opportunity to both the parties to lead evidence on

          partial evidence as those judgment and decree of the trial Court

          are not sustainable for want of any finding on issue of partial

          eviction.

                              8.iii. The learned counsel further submits that in

          the above judgment the learned trial Court has already

          considered the judgment reported in AIR 1994 SC page 489

          (Krishna Murari Prasad Vs. Mitar Singh) wherein it was

          observed –

                                    “It is obvious that the High Court
                                    proceeded on the basis that a presumption
                                    arises that where premises comprises only
                                    one room the proviso to clause -C of section
                                    1 of section 11 is not attracted since it is
                                    application of not practicable since its
                                    application is not practicable. Obviously,
                                    this assumption is fallacious since it is
                                    proposed that the indivisibility of premises
                                    comprises one room.”
                              8.iv. He further submits that irrespective of its

          dimension and even when the room is big enough to permit
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          division to satisfy the need of landlord as well as tenant. It is a

          question of fact in each case whether such a partial eviction can

          be made or not. This inquiry has to be done by the trial Court

          after reaching the conclusion that the landlord requirement for

          occupation of the premises set up by him has been made out in

          failing to do so the courts below overlooked the statutory

          requirement and as such it is clear that even in room to of the

          subject matter the issue of partial eviction is mandatory.

                              8.v. The learned counsel has further relied upon

          judgment rendered by co-ordinate bench of this Court in Bimal

          Kishore Gupta Vs. Smt. Beena Devi & Ors. reported in PLJR

          (2001) 2 page 837, where it has been held that it is duty cast

          upon the Court to consider the question of partial eviction even

          though no such plea is taken by the tenant. He further submits

          that from the aforesaid circumstances and consideration of the

          judgment it appears that the trial Court has not given any sight

          on the issue of partial eviction and has failed to consider the

          mandatory requirement under Section 11(i)(c) of the Act.

                              8.vi. Further in many cases wherein the issue of

          partial eviction was not considered, Hon’ble High Court has

          remanded the case to the learned trial Court for fresh

          consideration after setting aside the judgment. He further
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          contended that under the aforesaid circumstances the judgment

          and decree passed by the learned trial Court is bad without

          consideration of the mandatory requirement and is fit to be set

          aside.

                              9. Learned counsel for the respondent submits

          that the eviction suit filed under Section 11 (1) (c) of the BBC

          Act, 1982 was rightly decreed by the learned trial Court on the

          ground of bona fide personal necessity. The relationship of

          landlord and tenant, rate of rent, and occupation of the suit

          premises by the defendant/petitioner are all admitted facts. The

          plaintiff/respondent specifically pleaded in the plaint that the

          suit premises is reasonably and in good faith required for their

          own residence and professional use. Based on such evidence,

          the trial Court recorded a categorical finding that the plaintiffs’

          need is genuine, reasonable, and in good faith. These findings

          are based on evidence and are neither perverse nor illegal and

          therefore do not warrant interference in revisional jurisdiction.

                              9.i. Learned counsel for the respondent further

          submits that the defendant/petitioner failed to raise any plea

          regarding partial eviction either in the written statement or

          during cross-examination of the plaintiff witnesses, nor did he

          lead any evidence to show that the plaintiff requirement could
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          be satisfied by partial eviction. In law, once the landlord proves

          bona fide personal necessity, the onus shifts upon the tenant to

          plead and prove that such need can be met by partial eviction.

          Having failed to do so at the trial stage, the defendant/petitioner

          cannot be permitted to raise the issue for the first time at the

          revisional stage.

                              9.ii. He further submits that the plea of partial

          eviction must be specifically raised and proved by the tenant at

          the time of trial and that revisional courts cannot re-appreciate

          evidence or act as a second court of appeal. It was emphasized

          that the revisional jurisdiction is limited, as laid down by the

          Constitution Bench in Hindustan Petroleum Corporation Ltd.

          v. Dilbahar Singh reported in (2014) 9 SCC 78. He next

          submits that it may not be out of place to mention here that this

          Hon'ble Court in a number of cases has said it in so many words

          that issue of "Partial eviction" has to be raised by

          defendant/petitioner in its written statement and in his

          deposition and issue of partial eviction can't be decided "Suo

          moto" reported in 2010 (4) PLJR 553. Similarly, in judgment

          reported in 2010 (3) PLJR 483, it was held that "neither in

          Evidence nor in pleading defendant stated that requirement of

          plaintiff will be satisfied by partial eviction then this issue can't
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          be raised and the onus is upon defendant to prove the same.”

          Other judgment on the point is 2014 (4) PLJR 476 and 2012 (3)

          PLJR 649; 2013 (2) PLJR 491.

                              9.iii. In view of the above submissions, the

          learned counsel for the respondents prayed that the Civil

          Revision be dismissed, as the impugned judgment and decree

          are based on proper appreciation of evidence and settled

          principles of law, and suffer from no illegality or jurisdiction

          error.

                              10. After due consideration of the pleadings of

          the parties, the issues framed for adjudication, and the oral as

          well as documentary evidence adduced on behalf of both sides,

          and upon hearing the learned counsel for the parties, the learned

          trial Court, by judgment dated 27.08.2022 passed in Eviction

          Suit No. 02 of 2011, was pleased to allow the suit.

                              11. The learned trial Court recorded a categorical

          finding that the plaintiff/respondent is the owner and landlord of

          the suit premises and that the relationship of landlord and tenant

          between the parties stands admitted. It was further held that the

          rate of monthly rent and the occupation of the petitioner as a

          tenant in the suit premises were not in dispute. The learned trial

          Court, upon appreciation of the evidence on record, accepted the
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          case of the plaintiff/respondent that the suit premises is

          reasonably and bona-fide required for their own use and

          occupation. The learned trial Court further accepted the

          evidence that the second son of the plaintiff/respondent need to

          start a separate business in the suit premises and that the

          location of the suit premises is suitable for such purpose.

                              12. Upon an overall appreciation of the

          pleadings, evidence and material available on record, the

          learned trial Court concluded that the plaintiff/respondent had

          successfully established their entitlement to a decree of eviction

          under Section 11(1)(c) of the BBC Act, 1982. Consequently, the

          suit was decreed on contest in favour of the plaintiff/respondent

          and against the defendant/petitioner. The petitioner was directed

          to vacate the suit premises described in Schedule-I of the plaint

          within a period of ninety days from the date of the judgment,

          failing which the plaintiff/respondent was granted liberty to

          obtain eviction of the petitioner through the process of the

          Court. It was further ordered that the costs incurred in executing

          the decree shall be recoverable from the defendant/petitioner.

          The learned trial Court, however, directed that there shall be no

          order as to costs.

                              13. At the outset, it is necessary to reiterate that
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          the scope of revisional jurisdiction under the said provision is

          extremely limited as the present Civil Revision has been

          preferred under Section 14 (8) of the BBC Act, 1982. The

          revisional Court does not sit as a Court of appeal and cannot re-

          appreciate evidence merely because a different view is possible.

          Interference is permissible only when the findings of the learned

          trial Court are shown to be perverse, based on no evidence, or

          suffering from jurisdictional error. The legal position in this

          regard stands conclusively settled by the Constitution Bench of

          the Hon’ble          Supreme         Court    in   Hindustan   Petroleum

          Corporation Ltd. v. Dilbahar Singh (supra). In paragraph 43,

          the Hon’ble Supreme Court held that:

                              “The revisional court does not have the
                              power to re-appreciate evidence. The
                              jurisdiction is confined to examine whether
                              the findings of fact recorded by the court
                              below are according to law and do not
                              suffer from perversity or jurisdictional
                              error.”
          In the present case, the learned trial Court has framed specific

          issues, appreciated oral and documentary evidence adduced by

          both sides, and gave reasoned findings. No perversity or

          jurisdictional       error     has     been    demonstrated    warranting

          interference.

                              14. Coming to the core issue of bona fide
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          personal necessity, the law is well settled that the landlord is the

          best judge of his requirement, and the Court cannot substitute its

          own wisdom for that of the landlord. The Hon’ble Supreme

          Court in Sait Nagjee Purushotham & Co. Ltd. v. Vimalabai

          Prabhulal, reported in (2005) 8 SCC 252, held in paragraph 15

          that:

                                   “It is always the prerogative of the landlord
                                   to decide how and in what manner he
                                   should live or conduct his business. The
                                   tenant cannot dictate the terms to the
                                   landlord.”
                              15. The learned trial Court, upon appreciation of

          evidence, accepted this requirement as genuine and bona fide.

          The nature and test of bona fide requirement have been

          elaborately explained by the Hon’ble Supreme Court in Shiv

          Sarup Gupta v. Dr. Mahesh Chand Gupta, reported in (1999)

          6SCC 222, paragraph 11 observed that:

                           “The requirement of the landlord must be
                           honest, genuine and conceived in good
                           faith. It need not be a dire necessity but
                           must be a real and sincere need.”
          Applying the above test, the learned Trial Court has rightly

          concluded that the respondents’ need is honest and real, and not

          a mere pretext for eviction.

                              16. The contention of the petitioner regarding

          partial eviction is wholly misconceived. As learned counsel for
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          the petitioner relied upon the judgment rendered by co-ordinate

          bench of this Court in Bimal Kishore Gupta Vs. Smt. Beena

          Devi & Ors. (supra), where it has been held that it is duty cast

          upon the Court to consider the question of partial eviction even

          though no such plea is taken by the tenant. It is a settled

          principle that once the landlord establishes bona fide

          requirement, the burden shifts upon the tenant to plead and

          prove that such requirement can be satisfied by partial eviction.

          In Rahabhar Productions Pvt. Ltd. v. Rajendra K.Tandon,

          reported in (1998) 4 SCC 234, the Hon’ble Supreme Court held

          in paragraph 18 that:

                              “Once the landlord establishes bona fide
                              requirement, the onus shifts on the tenant to
                              prove that partial eviction would satisfy
                              such requirement.”
          Since the plea of partial eviction was neither taken in the Trial

          Court, the onus shifts on the tenant to prove that partial eviction

          would satisfy such requirement. In the present case, as rightly

          noted by the learned trial Court, the petitioner neither raised any

          plea of partial eviction in the written statement nor led any

          evidence to substantiate such a plea. In absence of pleading and

          proof, the tenant cannot resist eviction on the said ground and

          the onus is upon the petitioner/defendant to prove that partial

          eviction would satisfy such requirement.
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                             17. On the core issue of bona fide and reasonable

          personal necessity, the law gives primacy to the landlord’s

          assessment of his own need. In Prativa Devi v. T.V. Krishnan,

          reported in (1996) 5 SCC 353, the Hon’ble Supreme Court

          categorically held in paragraph 2 that the landlord is the best

          judge of his residential requirement and the tenant cannot

          dictate the manner of his living. Further, in Ramashray Singh v.

          Bindeshwari Prasad, reported in 2009 (3) PLJR 91, paragraph

          10, it was held that requirement of premises for dependent

          family members is a legitimate and bona fide requirement.

                              18. The contention for partial eviction has been

          consistently followed by co-ordinate bench of this Court in

          PLJR 2005 (3) 719, PLJR 2013 (2) 491, PLJR 2005 (3) 19, and

          PLJR 2016 (4) 20, wherein it has been held that the plea of

          partial eviction must be specifically pleaded and proved by the

          tenant and cannot be permitted to be raised for the first time at

          the revisional stage. With regard to the existence of cause of

          action, it is settled law that cause of action is not confined to a

          single event but consists of a bundle of facts which may arise at

          different stages. The Hon’ble Supreme Court in A.B.C.

          Laminart Pvt. Ltd. v. A.P. Agencies, reported in (1989) 2 SCC

          163, held in paragraph 12 that cause of action comprises all
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          those facts which the plaintiff must prove to obtain relief and

          may arise partly at one place and partly at another.

                              19. Further, in Sopan Sukhdeo Sable v.

          Assistant Charity Commissioner, reported in (2004) 3 SCC

          137, the Supreme Court held in paragraph 15 that the cause of

          action crystallizes when the right to sue accrues, particularly

          upon termination of the legal relationship. Applying this

          principle, the co-ordinate bench of this Court in Ram Prasad v.

          Sita Ram, reported in 1998 (2) PLJR 12, held in paragraph 7

          that issuance of a notice terminating tenancy furnishes a fresh

          and valid cause of action for eviction. From the aforesaid

          principles it is clear that the finding of the learned trial Court

          that the respondents had a valid and continuing cause of action.

                              20. The contention raised by the learned counsel

          for the petitioner relating to the personal need of the

          Respondent’s son, wherein it is well settled principle laid down

          by Hon’ble Supreme Court in Gaya Prasad v. Pradeep

          Srivastava, reported in (2001) 2 SCC 604, held in paragraph 10:

          “Subsequent events which strengthen the bona fide requirement

          of the landlord can be taken into consideration.” In the present

          case, the primary ground of eviction remains the personal

          necessity of the Respondent.
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                              21. Upon an overall consideration of the

          pleadings, evidence, and settled principles of law, this Court

          finds that the learned trial Court has exercised its jurisdiction

          properly, applied the correct legal tests, and recorded findings

          supported by evidence. The impugned judgment does not suffer

          from any illegality, perversity, or jurisdictional infirmity so as to

          warrant interference in exercise of revisional jurisdiction.

                              22. In view of the foregoing discussion, this

          Court is of the considered opinion that the learned trial Court

          has correctly appreciated the pleadings, evidence and the settled

          principles of law governing eviction on the ground of bona fide

          personal necessity under Section 11 (1) (c) of the BBC Act,

          1982. The findings recorded by the learned trial Court regarding

          the existence of landlord–tenant relationship, the bona fide and

          reasonable requirement of the respondents for the suit premises,

          and the non-feasibility of partial eviction are based on cogent

          evidence and do not suffer from any perversity, illegality or

          jurisdictional error.

                              23. This Court further finds that the scope of

          interference under Section 14 (8) of the B.B.C. Act is limited,

          and the present Civil Revision does not disclose any ground

          warranting interference with the well-reasoned judgment and
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                     decree dated 27.08.2022 passed in Eviction Suit No. 02 of 2011.

                     The contentions raised on behalf of the petitioner are devoid of

                     merit and do not persuade this Court to take a different view.

                     Accordingly, the present Civil Revision No. 68 of 2022 is

                     dismissed. The judgment and decree dated 27.08.2022 passed by

                     the learned Munsif, Samastipur in Eviction Suit No. 02 of 2011

                     are hereby affirmed. All pending IA’s with regard to the civil

                     revision no. 68 of 2022 is also disposed off.

                                         24. The petitioner/defendant is directed to vacate

                     and hand over peaceful possession of the suit premises, as

                     described in the plaint, to the respondents/plaintiffs within a

                     period of ninety (90) days from passing of the order of this

                     Court otherwise respondents will have right to vacate the suit

                     premise as per process of law.


                                           (Ramesh Chand Malviya, J)

Mayank/-

U


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