JUDGMENT H.N. Agarwal, M. - This is a second appeal against the decree dated November 30, 1970 passed by Shri O.P. Sharma, Additional Commissioner, Rohilkhand Division, Bareilly in first appeal No. 16 of 1960 dismissing the appeal against the decree dated September 19, 1969 passed by the S.D.O. Bareilly in case No. 4 of 1957 under Section 229-B/209 of the U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the parties and have gone though the record. 3. Smt. Soodar, respondent No. 3, had filed a suit seeking declaration of her Sirdari rights in certain plots and ejectment of the defendant-appellants, Ompal Singh and others if they were found in possession. The trial court decree the suit. The lower appellate court had affirmed the order of the trial court. Ompal Singh and other have now come up in second appeal before this court. 4. I have carefully considered the grounds taken by the learned counsel for the appellant. He has contended that the suit was barred by Section 34(5) of the U.P. Land Revenue Act. Section 34(5) U.P. Land Revenue Act provides as follows :- "No revenue court shall entertain a suit or application by the person, so succeeding or otherwise obtaining possession until such person has made the report required by this section." The contention of the learned counsel for the appellant cannot be upheld. It for the appellant cannot be upheld. It has been clearly cannot be upheld. It has been clearly stated in para 5 of the plaint that the plaintiff has submitted an application for mutation of her name in Tahsil Bareilly but that application has been rejected. It may further be observed that para 5 of the plaint has not been challenged in the written statements of the defendant-appellants. Thus it is no longer open to the learned counsel for the appellant to argue that the suit was barred by Section 34(5) U.P. Land Revenue Act. 5. The learned counsel for the appellant has also assailed the finding of fact recorded by the courts below. Thus it is no longer open to the learned counsel for the appellant to argue that the suit was barred by Section 34(5) U.P. Land Revenue Act. 5. The learned counsel for the appellant has also assailed the finding of fact recorded by the courts below. He has contended that Smt. Champa was the daughter of the deceased Smt. Ram Piari who died more than 8 or 9 years ago in the life time of Smt. Champa and Smt. Champa's sons, the appellants and his brothers have been recorded in the papers were in possession and that Smt. Sunder was not born from Smt. Ram Piari and Mulloo but from Smt. Ram Piari's previous husband. The admitted case of both the parties is that the land in suit was originally the tenancy of one Mulloo and after the death of Mulloo of his widow Smt. Ram Piari. The plaintiff, Smt. Sunder, claimed to be the daughter of Mulloo and Smt. Ram Piari. The defendant-appellants on the other hand alleged that she is not the daughter of Mulloo but is the daughter of Smt. Ram Piari from a previous husband and that the daughter of Smt. Ram Piari and Mulloo was one Smt. Champa. The defendant-appellants claimed to be the sons of the Smt. Champa. Both the courts below have after considering the evidence produced recorded a finding in favour of the plaintiff-respondent. The learned counsel for the appellant has failed to show that this finding of fact is perverse or is based on any misreading of evidence or that any material evidence has not been considered. There are, therefore, no grounds to interfere with this finding in second appeal. The learned counsel for the appellant has further contended that Smt. Ram Piari pre-deceased her daughter Smt. Champa and as such the appellant, who are Smt. Champa's sons, were entitled to succeed under the law. This contention cannot be upheld. Under Sections 171 and 172 U.P.Z.A. and L.R. Act a daughter and a daughter's sons do not jointly succeed a deceased Bhumidhar, Sirdar or Asami. Under Section 171 and unmarried daughter falls in category (e), a married daughter in category (g) and a daughter's son in category (h). This according to law a daughter is a preferential heir as compared to a daughter's son. The result would be that a daughter would succeed in preference to a daughter's son. Under Section 171 and unmarried daughter falls in category (e), a married daughter in category (g) and a daughter's son in category (h). This according to law a daughter is a preferential heir as compared to a daughter's son. The result would be that a daughter would succeed in preference to a daughter's son. Finally has contended that the suit was wrongly and illegally decided under Order 17 Rule 2 but ought to have been decided ex-parte open to restoration. The position is that on one of the dates fixed for hearing before the trial court the defendant had failed to appear in spite of full notice. Order 17 Rule 2, C.P.C. provides as follows :- "Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of this suit in one of the nodes directed in that behalf by Order IX or make such other order as it thinks fit." Order IX Rule 11 C.P.C. reads as follows :- "Where there are more defendants than one, and one or more of them appears, and the others do not appear, the suit shall proceed, and the court shall at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants who do not appear." It would be seen that where the defendant fails to appear the court shall proceed ex parte against the defendant but still decide the case on merits. The trial court has acted in accordance with the law in deciding the case on the merits. There is no force in the contention of the learned counsel for the appellant that the trial court should not have considered the merits of the case. 6. The result is that the second appeal has no force and is hereby dismissed with costs.